Drafting Engineering Contracts

DRAFTING ENGINEERINGCONTRACTS

Drafting EngineeringContracts

HENRY HENKINC.Eng., F.I.C.E., M.I.Struct.E.,

London, UK

ELSEVIER APPLIED SCIENCELONDON and NEW YORK

This edition published in the Taylor & Francis e-Library, 2005.“To purchase your own copy of this or any of Taylor & Francis or Routledge’scollection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”

ELSEVIER APPLIED SCIENCE PUBLISHERS LTDCrown House, Linton Road, Barking, Essex IG11 8JU, England

Sole Distributor in the USA and CanadaELSEVIER SCIENCE PUBLISHING CO., INC.

52 Vanderbilt Avenue, New York, NY 10017, USA© 1988 ELSEVIER APPLIED SCIENCE PUBLISHERS LTD

British Library Cataloguing in Publication DataHenkin, H.

Drafting engineering contracts.1. Great Britain. Engineering. Contracts

I. Title620

Library of Congress Cataloging in Publication DataHenkin, H. (Henry)

Drafting engineering contracts by H.Henkin.p. cm.

ISBN 1-85166-223-51. Engineering— Contracts and specifications— Great Britain.

2. Engineering— Contracts and specifications. I. Title.KD1641.H46 1988343.4′078624–dc 19

[344.10378624] 88–7287

ISBN 0-203-97324-0 Master e-book ISBN

ISBN 1-85166-223-5 (Print Edition)

No responsibility is assumed by the Publisher for any injury and/or damage topersons or property as a matter of products liability, negligence or otherwise,or from any use of operation of any methods, products, instructions or ideas

contained in the material herein.Special regulations for readers in the USA

This publication has been registered with the Copyright Clearance CenterInc. (CCC), Salem, Massachusetts. Information can be obtained from the CCCabout conditions under which photocopies of parts of this publication may be

made in the USA. All other copyright questions, including photocopyingoutside of the USA, should be referred to the publisher.

All rights reserved. No part of this publication may be reproduced, stored in aretrieval system, or transmitted in any form or by any means, electronic,

mechanical, photocopying, recording, or otherwise, without the prior writtenpermission of the publisher.

Foreword

byP.A.Cox B.Sc(Eng)., F.Eng., F.I.C.E.

Past President of the Institution of Civil EngineersLately Chairman of Rendel Palmer & Tritton Ltd

The drafting of Engineering Contracts is often regarded as beingprimarily concerned with that part of Contract Documents known asthe Conditions of Contract. Those who have been responsible for thecontrol of contracts will recall vividly that many problems and claimsarose from other parts of the Documents and also the relationshipbetween the parts. The integrity of the whole of the ContractDocuments is therefore the hallmark of good drafting and essential tosuccessful project implementation.

Henry Henkin has had extensive experience in the United Kingdomand overseas in the drafting of Contract Documents and in theadministration of a wide range of contracts, both as a contractor andas a supervising engineer. That experience has enabled him to setdown in this volume a clear methodology for drafting. Requirementsare well reasoned and the many examples give the reader a clearunderstanding of the need to control carefully the power available inour language. During his service with Rendel Palmer & Tritton,Henry showed his command of the subject, earning the appreciativerespect of his colleagues, our clients and the contractors whose workwe directed.

Contract forms— FIDIC, EDF, BPF and others—are continuing tobe developed as client requirements evolve in the changing, andincreasingly internationalised scene. This volume will be a valuableguide to those charged with that development as well as to thoseresponsible for the detailed preparation of documents for specificprojects.

Preface

When I first read Abrahamson’s “Engineering Law and the ICEContracts” I noted, in passing, the points he made concerning draftingand the books which he recommended on legal drafting, but I mustadmit that I didn’t read those books until I came to write this book. Ifound that the books were difficult to obtain and no engineers of myacquaintance appeared to have read them.

In the late seventies, when I already had considerable experience ofdrafting documents, I had to draft new civil engineering Conditions ofContract for a Commonwealth government whose existing Conditionswere an out of date colonial form which did not suit the currentcontracts entered into by their Ministries and other nationalorganisations; I also had to oversee the preparation of variousmechanical and electrical engineering standard forms. To do this Ifound it necessary to analyse the basic requirements for the drafting oflengthy documents and, in particular, to set out the logical frameworkfor Conditions of Contract and for other documents. I realised thenthat there was no readily accessible publication which would assist mein this. There lies the origins of this book, which is intended topresent the ideas and methods of the authorities on legal drafting inthe context of engineering contract practice, together with detaileddiscussion of the requirements for form and content of thedocumentation which engineers are required to draft.

The readers of this book may vary from young graduates puttingtogether their first specification for a small work to experiencedengineers drafting major documents, but who have not had anyformal training in drafting; they may include civil, chemical,structural, mechanical and electrical engineers. I have not, therefore,expected that (apart from the necessary engineering knowledge) myreaders would necessarily know more than the elements of contractlaw and have some limited experience of contract administration,although much greater knowledge and experience is required fordrafting important documents.

There are very few references to legal judgements in the book andthen only in connection with interpretation and punctuation. As thebook is not primarily concerned with law, I have considered itinappropriate to give case references in those few instances.

Although the book is concerned with drafting and not with lawor administration nor with the subject matter of individual contracts,these various matters cannot be ignored. I have tried to overcome thisproblem by the introduction of a variety of examples and by settingout a large number of the items which need to be included in thevarious documents, so that the text may serve also as an aide-mémoire. The book is based upon British contract practices, but theprinciples described are applicable wherever English is used as thelanguage of documents.

I consider that the provisions concerning payments to the Contractor(and contra charges against him) are inadequately and illogicallydealt with in the standard forms of Conditions. In particular, Iconsider it essential that all entitlements to payments be broughttogether in one Section and that references to them should, so far aspossible, be eliminated from other parts of the contract documents. Ihave tried to emphasise this in the text and I hope that my commentsmay lead to some discussion and improvement on this importantsubject.

As a civil engineer my examples of drafting relate, in many cases, tocivil engineering and construction contracts in which I have beeninvolved in the past 25 years. As I have also been responsible fordrafting mechanical and electrical engineering documents and forassisting and redrafting documents prepared by engineers in otherdisciplines, I have been able to include some material relatingspecifically to mechanical, electrical and chemical engineering.However, the principles involved in the drafting of contract documentsapply to all types of engineering work and I have, therefore, tried toconcentrate on those principles while relying on examples todemonstrate their implementation.

Civil engineers use Bills of Quantities extensively for arriving at thecontract price by remeasurement. There would be little point inadding one further text to the many publications concerning Bills ofQuantities except to the extent necessary to provide explanations toengineers in other disciplines who are not familiar with thesedocuments, but who may find it useful to understand the principlesinvolved. There appears to be very little published concerning thedetails of payment schedules required for lump sum and other typesof contract and I hope that my explanations and examples onPayment Documents will assist those engineers who have to prepare

vi

contracts which are not remeasured and for which Bills of Quantitiesare not applicable.

Finally, I hope that all my readers will be allowed adequate time fordrafting and checking their documents. Unfortunately, in most casesthis will not be so. This appears to be a major problem in modernengineering practice.

vii

Acknowledgements

My thanks to Mr. P.A.Cox for his foreword which is highly appreciatedand valued, as well as for his encouragement and assistance inenabling me to make use of documents drafted for Rendel Palmer &Tritton as a basis for many of the examples in the text. The wording ofthose examples has, of course, been changed from that in the originaltext and the responsibility for those examples is entirely mine and isnot attributable to Rendel Palmer & Tritton.

My thanks also to Mr. John Chandler, M.A., C.Eng., F.I.C.E.,F.C.I.Arb., and to Mr. Fred McAdam, B.Sc., D.I.C., D.M.S., C.Eng.,F.I.C.E., M.I.W.E.M., F.B.I.M. for reading through the manuscriptand giving me their very valuable comments based on their extensiveexperience of engineering contracts.

My wife typed the whole of the manuscript from my dictation and Ihave this and much else to thank her for.

Terminology and Abbreviations

(1) The term Employer is used throughout this book to describe theparty to the contract who employs the Contractor to carry out theWorks, although in mechanical and electrical contracts he is moreusually referred to as the Purchaser and in government contracts heis referred to as the Authority. Similarly, the term Engineer is used todescribe the person nominated to administer the contract, although ingovernment contracts he is referred to as the Supervising Officer (SO)and in building contracts he is usually replaced by the Architect. Insome cases the Company Representative is substituted for theEngineer but, as explained in Chapter 4 Part 4.1, this does notseriously affect the drafting.

(2) The term draftsman is intended to describe anyone (male orfemale) responsible for preparing contract documents. It is not to beconfused with those who prepare drawings, previously calleddraughtsmen but now referred to as technicians.

(3) Each Chapter has been divided (and where necessary sub-divided) using decimal notation. The divisions and sub-divisions arereferred to as Parts in order to avoid possible confusion with referenceto Sections of contract documents.

(4) The following abbreviations are used; except for the FIDICConditions, the documents are all published in the UK, but manysimilar documents are available in other countries where English typelegal systems prevail, although there are differences due to the effectof local laws:

Abbreviations Full TitleConditions Conditions of Contract or General Conditions of

Contract.ICE Conditions Conditions of Contract and Forms of Tender, Agreement

and Bond for use in Connection with Works of CivilEngineering Construction.

I.E.E. Conditions Model Form of General Conditions of Contract includingforms of Agreement and Guarantee recommended by the

Abbreviations Full TitleInstitution of Mechanical Engineers, the Institution ofElectrical Engineers and the Association of ConsultingEngineers for use in connection with Home Contracts—With Erection. (Model Form A/1976).

Abbreviations Full TitleI.Chem.E. Conditions Model Form of Conditions of Contract for

Process Plants Suitable for Lump-sumcontracts in the United Kingdom.

FIDIC Civil Conditions Conditions of Contract (International) forWorks of Civil Engineering Constructionwith forms of tender and agreement (3rdEdition 1977).

FIDIC E&M Conditions Conditions of Contract (International) forElectrical and Mechanical Works (includingerection on site) with Forms of Tender andAgreement (2nd Edition 1980).

GC/Works/1 General Conditions of GovernmentContracts for Building and CivilEngineering Works.

JCT Conditions ‘Standard Form’ of building contract for usewith quantities private edition.

Roads & Bridges Specification Specification for Road and Bridge Works.(This has now been superseded by theHighway Works Specification).

Highway Works Specification Specification for Highway Works.Note: The names of the publishers of these documents and the latest edition

is given in the bibliography.

x

Contents

Foreword iv

Preface v

Acknowledgements viii

Terminology and Abbreviations ix

CHAPTER 1 GENERAL PRINCIPLES

1.1 Introduction 1

1.2 Knowing The Subject 4

1.3 Intention of Parties to a Contract 6

1.4 Basic Requirements for Document Drafting 7

1.5 Communication and Drafting 8

1.6 The Author and The Audience 9

1.7 The Written Utterance and The Context 12

1.8 Clarity and Ambiguity 14

1.9 Vagueness and Generality 15

1.10 Legal and Technical Expressions 16

1.11 Interpretation in Relation to the Whole Contract 17

1.12 Checking 18

CHAPTER 2 WORDS, SENTENCES ANDPUNCTUATION

2.1 Avoiding Ambiguity 21

2.2 Grammar and Usage 21

2.3 Choice of Words— Reference Books 22

2.4 Voice and Tense 24

2.5 Arrangement of a Sentence 24

2.6 Short Words and Short Sentences 27

2.7 Consistency of Terminology 28

2.8 Repetition 29

2.9 Rules of Interpretation 30

2.10 Elaborating a General Statement 31

2.11 Adjectives Qualifying Two or More Nouns 32

2.12 Use of Pronouns 34

2.13 Singular and Plural, Masculine and Feminine 35

2.14 The Use of Capital Letters 36

2.15 “And” and “Or” 37

2.16 “Shall” and “Will” 40

2.17 “Such”, “Said”, “Same”, “Because of” 41

2.18 Special Phrases 43

2.19 Phrases Concerning Time 44

2.20 Punctuation 45

2.21 Colon, Semicolon, and Dash 47

2.22 Commas, Brackets, Inverted Commas, andHyphens

48

2.23 Provisos, Exceptions, Conditions, andQualifications

52

2.24 Descriptions of Clauses etc 55

CHAPTER 3 ARRANGEMENT AND FORM OFDOCUMENTS

3.1 Order and Logic 57

3.2 Preparing the Framework and Contents 59

3.3 Some Useful Conventions 61

3.4 Sections, Clauses, and Sub-clauses 61

3.5 Marshalling Sentences 63

3.6 Listing 67

xii

3.7 Punctuating and Numbering for Marshallingand Listing

68

3.8 Annexures, Schedules, and Appendices 69

3.9 Definitions— Types and Usage 70

3.10 Interpretation Clauses 72

3.11 Definitions to be Avoided 74

3.12 One-off Definitions 77

3.13 Mathematical Formulae, Tables, and Forms 77

3.14 Document Layout 79

3.15 Incorporation of Standard and ExistingDocuments

82

CHAPTER 4 CONDITIONS OF CONTRACT

4.1 Purpose of Conditions of Contract 85

4.2 Fundamental Logic 87

4.3 Logical Order of Sections 88

4.4 Use of Logical Method 91

4.5 Composition of Each Section 93

4.5.1 Definitions and Interpretation 93

4.5.2 The Engineer 95

4.5.3 Contract Documents 97

4.5.4 Commencement and Programme 99

4.5.5 General Obligations 100

4.5.6 Labour 107

4.5.7 Workmanship and Materials 108

4.5.8 Property in Materials and Plant 110

4.5.9 Nominated Sub-contractors 111

4.5.10 Completion 114

4.5.11 Maintenance and Defects 115

4.5.12 Remedies and Powers 117

4.5.13 War Clauses 118

xiii

4.5.14 Contract Price and Liquidated Damages 119

4.5.15 Terms of Payment 123

4.5.16 Certificates 125

4.5.17 Settlement of Disputes 127

4.6 Other Sections and the Practical Application ofthe Fundamental Logic

129

CHAPTER 5 SPECIFICATIONS

5.1 Purpose of Specification 131

5.2 Types of Specification 132

5.3 Logical Arrangement of Specifications 134

5.4 Specification Framework 137

5.5 Standard Specifications 141

5.6 Manufacturer’s Specifications 147

5.7 General Section 149

5.7.1 Description and Extent of Works 150

5.7.2 Description of Site 152

5.7.3 Site Facilities 157

5.7.4 Control of Pollution and Protective Measures 163

5.7.5A General Requirements for Design andChecking

167

5.7.5B General Requirements for Construction andInspection

171

5.7.6 Reporting and Programming 174

5.7.7 Miscellaneous General Clauses 178

5.8 Sub-Contracts 179

CHAPTER 6 PAYMENT DOCUMENTS

6.1 Introduction 183

6.2 Bills of Quantities 185

6.3 Schedules of Rates 190

6.4 Payment Schedules 196

xiv

6.5 Payment for Variations 199

6.6 Example of Variation and Interim PaymentSchedule

200

6.7 Dayworks 206

6.8 Cost Reimbursible Contracts 208

CHAPTER 7 MISCELLANEOUS DOCUMENTS

7.1 Other Contract Documents, Bonds, andGuarantees

213

7.2 Tender Forms 215

7.3 Acceptance and Formal Agreement 219

7.4 Non-contractual Documents 221

7.4.1 Pre-qualification 221

7.4.2 Invitation and Instructions to Tenderers 222

Bibliography 225

Index 231

xv

xvi

CHAPTER 1General Principles

1.1Introduction

A large Japanese contractor has said that he has “completed work ona 50 storey office block at a cost of £29 m without any contract”. Hisreference was to lack of a formal contract; there must, of course, havebeen a verbal contract in which the parties agreed that the workwould be carried out for a particular price or based upon a particularmethod of pricing and there must have been drawings and aspecification describing the work to be done. There may even havebeen a pricing document, or access to the contractor’s estimate, for thepurpose of pricing variations.

In theory, engineering or building contracts can consist solely of asimple agreement in which the Contractor agrees to carry out thework for a fixed sum. In practice the complexity of the work demandsdrawings and documentation, usually of considerable length, tosupplement the simple contract and to provide the rules governing thecarrying out of the work and the relations between the parties.

Provided that the legal requirements for a valid contract areobserved, a formal agreement is not required; many commercialcontracts for engineering work are in the form of a simple exchange ofletters, but they are backed by formal documentation which, in mostEnglish speaking countries, usually comprises:

Conditions of ContractSpecificationDrawingsBills of Quantities or Schedules of Rates or some other

Payment Document.

Contracts with public authorities and, usually, with large commercialcompanies, will have a simple formal agreement which incorporates aformal tender by the Contractor. The formal agreement is usually (asin the ICE Agreement form) a simple listing of the contract documentsand a legal agreement to abide by them.

The form of the basic documents may vary widely. For example,some engineers consider the Specification to be an extension of theConditions of Contract and draft it accordingly, numbering the clausesin continuation of the clause numbers in the Conditions. In buildingcontracts, on the other hand, the Specification usually forms part ofthe Bills of Quantities, the theoretical intention being that tenderersshould have the opportunity of pricing the various items of theSpecification (in practice this does not usually occur). Bills ofQuantities or Schedules of Rates may be absent or may vary widely inform according to the method of measurement; in the case of a lumpsum contract there may be merely a schedule of interim payments,although it is common to include a schedule of rates to enablevariations to be easily priced. The above list of basic documents is notexhaustive; other documents such as drainage schedules andearthwork schedules, performance bonds and retention bonds,supplementary agreements with outside parties, nominated sub-contract forms, quotations for pre-ordered materials, forms of tender,instructions for tendering, etc, are common. Package deal contractsand management contracts may have different documentation,although, in the absence of nationally agreed forms specific to packagedeal or management contracts, there is often a tendency toincorporate standard documents used in other types of contracts. Thisdocumention is in addition to the large number of drawings whichusually form part of the contract. The wide variety and type ofdocumentation, the variety of site and manufacturing conditions andthe variety of financial arrangements makes each engineeringcontract unique, requiring careful consideration and preparation ofthe documentation and modification of those standard documentswhich are incorporated in it.

A large engineering contract may have between 500 and 1500 pagesof written documentation in addition to up to perhaps 2000 or moredrawings. Apart from the drafting of bonds and similar documentsand the checking of standard documentation, the whole of this verylarge and complex legal document is usually drafted by engineers,with varying degrees of skill. The preparation of the various contractdocuments requires a substantial knowledge of the design andconstruction of engineering works and of the manner in which theyare supervised and administered. With the exception of those rareindividuals who qualified and worked as engineers before becoming

2 DRAFTING ENGINEERING CONTRACTS

lawyers, it is not practical for lawyers to acquire this knowledge inorder to draft engineering documents, although some specialistlawyers have acquired sufficient knowledge of the administration ofthe contracts and of employer-contractor-engineer relationships to beable to advise on contract conditions and to take instructions anddraft Conditions of Contract. There is really no satisfactoryalternative to engineers acquiring the necessary skills in legaldrafting to enable them to prepare sound contract documents.

Drafting skills have generally been acquired by ‘apprenticeship’, theyoung engineer copying previous documentation with minormodifications and gradually acquiring the prevailing style andthereafter proceeding to draft documents which require more originalwork than is forthcoming in available or standard documentation. Forhistorical reasons, legal documents were, in the past, lengthy, complexin construction and verbose, written in a legal jargon which was oftenincomprehensible to the clients for whom the documents had beenprepared. In the past century the legal profession and legislation hasbeen moving toward clear and less verbose documents, less complex inverbal construction and easier for the layman to read, understand,and administer.

There have been many legal volumes dealing with the drafting ofparticular types of document, based upon standard forms produced bytheir authors or generally in current use, but very few dealing solelywith the general and detailed requirements for legal drafting.However, of recent years there appears to have been moves in the legalcommunity to provide lawyers with education in legal drafting toimprove and supplement the knowledge acquired by ‘apprenticeship’.A number of books have appeared dealing solely or mainly with thegeneral and detailed requirements for legal drafting (as distinct fromthe requirements for individual documents). The stress among theseand earlier authorities is on clear and straightforward writing withthe minimum of legal jargon, so as to make the documents intelligibleto all who have to use them.

This book deals with all those aspects of writing, style, form andpresentation required in the drafting of engineering contractdocuments. It is only incidentally concerned with the substance of thematters with which those documents deal. In consequence it dealsonly incidentally with the subject of drawings, although they formpart of the documentation. Many examples are given to illustrate thetext, but those examples are not necessarily suited to all contracts andshould not be slavishly copied.

GENERAL PRINCIPLES 3

1.2Knowing The Subject

To draft legal documents one must obviously have some knowledge oflaw. The young engineer commencing to draft part of a largespecification (usually based on a specification for a previous job)requires only a very rudimentary knowledge, but the more seniorengineer responsible for preparing the whole of the documentation fora contract ought to have a sound knowledge of construction law. Theengineer cannot be expected to have the knowledge of a lawyer or theoutlook and background which comes from the full time study andpractice of law. He would not expect to be able to quote precedents,nor to delve into related subjects such as insurance law and practiceor company law, which affects some aspects of engineering contracts.He must expect to have a sufficient knowledge to recognise legalproblems and to seek advice on matters outside his experience. It ismore important to have a good knowledge of the standard forms ofConditions of Contract and of the legal implications of the variousclauses in them than to have a high standard of theoretical knowledgeof the law of contracts.

In legal theory, an independent contractor who has contracted tocarry out work is free to carry it out in the manner he considers best.In engineering contracts this freedom of action is severelycircumscribed; limitations are placed upon the contractor so as toensure that:

(i) his actions do not make the Employer vicariously liable in respectof special and general legal obligations;

(ii) the Contractor has a management control system which willensure that the work is properly carried out (in the Employer’sinterest) and not merely for the purpose of maximising profit (inthe Contractor’s interest);

(iii)

the Contractor demonstrates that his construction methods andmaterials are satisfactory for the work;

(iv)

methods of construction are those current in the industry or whichcan be proved, by demonstration, to be satisfactory in thecircumstances of the site and the work;

(v) if possible, the Employer is provided with sanctions within theContract (without prior legal action) if the Contractor fails to fulfilhis responsibilities.

All the documents have to take account of the foregoing requirements;engineering knowledge and experience is required to deal with all butthe first of these requirements and such knowledge is, therefore, an


essential part of the qualifications for drafting engineering contracts.These requirements are particularly applicable to engineeringconstruction contracts because:

(i) in many cases examination of the finished work will not revealwhether the work has been properly carried out;

(ii) the incorporation of unacceptable materials or workmanship mayprove irreversible without substantial demolition and considerabledelay or may even prove impracticable due to site conditions;

(iii)

the Employer usually wishes to minimise his own involvement inthe construction process and to minimise additional costs.

The requirements outlined apply also, to a greater or lesser extent, tocontracts involving manufacturing and erection of engineering workand, to a lesser extent, to the manufacture of specially designedengineering structures or machines.

It is important for the draftsman to know the requirements of hisclient, whether that client be a public authority instructing aconsulting engineer or the estimating director of a contractor offeringa package deal contract. Client’s instructions fall into two parts:–

(1) Direct instructions concerning matters such as the form ofConditions of Contract and any amendments thereto, methods ofcalculating liquidated damages, special requirements to beincorporated in the Specification and in the Payment Documents,requirements concerning performance bonds, and the like.

(2) Instructions concerning the design of the Works including client’sapproval of drawings, of draft documents and of tender particulars(such as contract period, etc.).

The draftsman must work closely with the designer to ensure that thematerials and methods of construction required by the design areproperly incorporated in the documents and that there is propercrossreferencing between the documents and the drawings; all toooften it is found that drawings and specifications are contradictorybecause of lack of such liaison. Although, in theory, the designer andthe document draftsman might be the same person, in practice theyare often separate individuals. Because of the importance of designliaison and involvement in the preparation of contract documents, it isessential that the document draftsman commence work at an earlystage in the design process. This should preferably be when thepreliminary design has been agreed with the client and instructionshave been given to commence detailed design.


The last, but by no means the least, requirement for documentdrafting is the ability to write clear and unambiguous English. Thisrequires the avoidance of unnecessary jargon and a knowledge ofmodern English usage, rather than familiarity with pedagogicgrammatical rules.

1.3Intention of Parties to a Contract

The purpose of contract documents is to express and recordunambiguously the matters intended by the parties to the contract.However, that intention is expressed by the words of the contract andnot by what the parties supposed or claim as their intention. If theintention to be adduced from the contract wording does not correspondto what either of the parties believe was intended, then that belief isof no avail, for the contract will be interpreted in accordance with thewording. In a judgement in 1861 Lord Wensleydale said—

“The question is not what the parties to a deed or otherdocuments may have intended to do by entering into that deed,but what is the meaning of the words used in that deed: a mostimportant distinction in all cases of construction and disregard ofwhich often leads to erroneous conclusions”.

It was even more strongly put in the judgement by Sir Gorell Barnesin 1907 when he said—

“What a man intends and the expression of his intention are twodifferent things. He is bound and those who take after him arebound by his expressed intention. If that expressed intention isunfortunately different from what he really desires, so much theworse for those who wish the actual intention to prevail.”

These judgements underline the need for clear accurate drafting toexpress correctly and unambiguously the intention of the contract.To ensure that the intention is correctly expressed, it is necessary toconsider all the alternative possibilities that might arise from thewording being used, and so to guard against unforeseeninterpretations. Generally, engineering documents tend to be lengthyand usually have to be drafted to a tight time schedule: it is oftenimpossible to find the time to examine every possibility on all theclauses. It is common, therefore, to rely to a considerable extent onstandard forms which have been carefully thought out and used over anumber of years or on clauses from previous documents which appear


to have proved satisfactory. Unfortunately, clauses from previousdocuments do not always prove adequate for the other work and thereis really no substitute for experience and care. Drafting is an artwhich can only be acquired with practice, but a little study of theprinciples involved will undoubtedly help.

1.4Basic Requirements for Document Drafting

Writers on legal drafting have summarised the methodology ofdrafting; the following five basic precepts, based on that methodology,provide good general guidance in the drafting of engineering contracts.

A. Before work commences on drafting the wording of thedocument, the whole layout and overall design should be conceived asa framework for drafting. It is worthwhile preparing a drafting plan inthe form of a contents list divided into section headings and clauseheadings. During drafting it may be necessary to change or add to orrearrange the clauses in the original contents list, but such changesshould concern matters of detail. The basic content and outline shouldbe retained; if changes of principle are to be made then the outline andcontent should be redrawn rather than amended, even if a substantialpart of the document has been drafted. Obviously, if an engineeringstructure is to be steel framed instead of concrete framed, there has tobe a radical change of plan. Even the clauses concerning the concretewill have to be reconsidered and rearranged; they cannot merely betransferred as a whole from one specification to the other.Unfortunately, in the case of Conditions of Contract this precept ismore often honoured in the breach; attempts are made to adoptstandard forms (often written for conventional measure and valuecontracts) with minor modifications to suit radically differentconcepts, such as design and construct contracts or contracts involvinga degree of consultancy, such as those for site investigation.

B. A logical order should be adopted for the various sections andclauses. The actual logic applicable will depend upon the nature of thedocument and the nature of the work as well as the personal opinionsof the draftsman. The order appropriate to various documents isdiscussed in later chapters. The precise order adopted by thedraftsman is not of importance so long as it is logical and the logic ofthe arrangement is clear to the reader so that he is able to understandparticular requirements in relation to the general requirements forthe work.

C. Nothing should be included or omitted at random. If, duringdrafting, the draftsman cannot appreciate the relevance of someprovision which it has become common to include or which has been


included in a similar previous document, then he must either satisfyhimself by further inquiries that the provision is necessary or heshould omit it. Unnecessary repetition is also an irrelevance; wheredefinitions are given in the document, repetition of part of thedefinition may be a dangerous irrelevance. As an example, the FIDICCivil Conditions define ‘approved’ as meaning ‘approved in writing’; tocontinually refer to approval ‘in writing’ in the Specification amountsto depreciating the definition and suggesting that there may beoccasions when verbal approval is acceptable.

D. The documents should be in a form with which the reader will befamiliar and the technical language should be that which is ordinarilyused in the class of work. This does not preclude change of form tosuit new types of work or new concepts, but it does assume that thedraftsman will, in such cases, so far as possible retain familiarconcepts and technical terms.

E. The language used should be precise and accurate, so that everyphrase has a clear meaning and phrases are interconnected in amanner which will not give rise to ambiguity. It should be appreciatedthat clarity may be achieved equally by the omission of irrelevantphrases as by the use of apt wording.

1.5Communication and Drafting

An engineering contract is only part of the process of construction of aproject or of fabrication of some elements of it. The purpose ofthe contract documents is not only to set out the legal rules which areto govern the parties contractual conduct but also to communicate therequirements for carrying out the work and the stipulations andlimitations applicable to materials and workmanship. The drafting ofthe documents is not, therefore, only a matter between the draftsmanand his client, but has to be understood by a wide range of people whohave to construct the work, or to receive instructions in connectionwith it, or to claim payment for it, or to provide insurance, or to carryout any of the many other functions involved. To ensure that themany people concerned correctly interpret the requirements, thedraftsman must follow the principles of communication applicable toall written statements.

Reed Dickerson (in The Fundamentals of Legal Drafting) postulatesfour main elements in the written communication process—

(1) The author.(2) The audience.(3) The written utterance.


Vinay

Highlight

(4) The relevant context or environment.

The fourth element is, perhaps, the most misunderstood, even thoughall writers are constrained by it. Many engineers are misled by thelegal requirement that the meaning of a contract is to be inferred onlyfrom the wording of the documents; they overlook the fact that themeaning of the words themselves depends upon the context in whichthe document is written and also that there are rules of law whichintroduce implied terms to ensure that certain types of contractconform with the applicable context or environment. The best knownof these rules deals with contracts of sale and infers that the contractprovides that the goods being sold are of merchantable quality or thata ship being sold is seaworthy, etc.

All communication is based upon the language habits of theparticular groups being addressed. Meaning in language is based uponusage and, although small changes to usage are generally acceptableor may even improve intelligibility, substantial departure fromaccepted usage seriously detracts from communication. In general,adherence to the conventions of language currently adopted by theaudience cannot be over emphasised; for example if carpentry isspecified in the language of the soils engineer the audience for thatcommunication might well be baffled.

1.6The Author and The Audience

In most writing, including a large proportion of legal documents, theauthor is a clearly recognisable individual. Where a book or a report iswritten by a number of individuals, the responsibility for propercommunication will be shared only by the limited number of individualauthors concerned. However, in the case of the documents for a largeand complex engineering construction contract, we find that, inpractice, there is a much more complex form of authorship whichimposes both limitations and external environment on the documents.

The Conditions of Contract are almost invariably standard formswhich have usually been drafted by a committee and revised, over theyears, by other committees. There are often additional clauses used bythe Client as standard (dealing with such matters as taxation andlegal responsibilities) and usually drafted by the Client’s lawyers.There may also be clauses concerning relationships with other bodies,such as Statutory Undertakers, which arise from negotiations withthose bodies. Amendments and additional clauses appropriate to thework will also be provided by the engineer responsible for drafting thedocuments, although in many large consulting offices these clauses


and amendments may be drafted by a special contracts department.The result is generally a complicated patchwork of requirements andresponsibilities; it usually takes some years of experience before anengineer is able to master the intricacies of the Conditions of Contract.

Bills of Quantities in the UK are based upon a standard Method ofMeasurement prepared by a committee, although in this case aconsultant or a small drafting committee is likely to have co-ordinatedthe drafting and prepared the final draft as a consistent whole.Preambles to the Bills will have to be prepared by the measurementengineer or quantity surveyor, including modifications to the Methodof Measurement. The Bill descriptions are often drawn from astandard library of descriptions which may have been computerised.The measurement engineer or quantity surveyor may not beresponsible for the remainder of the documents, i.e. they mayrepresent an additional author.

The main draftsman responsible for preparing the documents willusually draft the Specification, but the clauses concerningworkmanship and materials are likely to be based on a standardspecification or on clauses previously used for other work and suitablymodified. The draftsman also prepares other documents such as theInstructions for Tendering and coordinates all the various parts of thecontract documents, including a standard form of tender and standardforms of agreement and bond.

Obviously, the draftsman responsible for preparing documentsrequires not only a knowledge of the engineering work involved and ofthe designer’s intentions (if he is not also the designer) but alsorequires a knowledge of the industry and of the language habits of thevarious groups who have been involved in drafting standarddocuments.

The audience who must read and understand the documents areequally varied. The draftsman’s first audience will be the client, whohas to be satisfied that the documents express his requirements forthe work. Large and complex engineering construction works areusually ordered by public authorities or large companies who haveengineering and legal departments and who will usually scrutinise thedocuments and be familiar with the language habits of those who willhave to read them. Such a client will not necessarily be familiar withall the specialities, but this will require explanation rather thanadjustment of the documentation.

When the documents have been completed and approved they willusually be sent to a number of contractors who will be invited totender for the work. There they will be dealt with by planners (whowill usually be engineers with wide experience who will decide the


working methods to be assumed for tender pricing) and by estimatorswho will be responsible for pricing the tender.

Both planners and estimators will usually be familiar with thelanguage habits of the various audiences for the parts of thedocuments with which they are concerned, but the estimator willusually obtain quotations for materials from the contractor’s buyingdepartment, who will think in terms of the language habits and jargonof the suppliers. The specification for materials must, therefore, takeaccount of the language habits and jargon employed in the sale anddistribution of the various materials. The estimator may also have totake account of the advice of the company’s lawyers concerningloopholes in the Conditions of Contract and will also have to obtainquotations from insurance companies and/or brokers for insurancesand bonds which may be required.

In theory, the draftsman should introduce amendments to standardConditions to close loopholes arising from known ambiguities or fromthe inapplicability of particular conditions to the work in hand; thedraftsman will, however, find that contractors’ lawyers are usuallyone jump ahead. The various standard Conditions of Contract haveinsurance clauses drafted in the terminology of that industry; in mostcases it is sufficient for the draftsman to have a generalunderstanding of the terminology, in order to avoid inserting in otherparts of the documents requirements which may not be consistentwith the insurance clauses.

When a contract has been let and construction work is under way, amuch wider audience is involved. Senior managers andadministrators may be expected to appreciate the terms used in thevarious parts of the documents to communicate with the appropriatelanguage community. Section engineers, supervisers and foremen, aswell as the various specialists subcontractors will have a more limitedinterest and will, generally, only be interested in a particular sectionof the Specification and of the payment documents. The terminologyused and the matters implied in the various trades and amongsuppliers of materials will have to be related to the meaningsunderstood by those involved.

Although the authorship and the audience may be very wide inlarge construction contracts, many small contracts will have a morelimited audience but may well have as broad an authorship.Manufacturing or fabricating contracts or supply or maintenancecontracts will be simpler, but all require, to a greater or lesser degree,a knowledge of the personnel and methods used in the industriesconcerned, which the draftsman must have acquired by involvementin the supervision of engineering work, and in the administration ofcontracts, in addition to his involvement in the design process.


On large contracts, an engineering draftsman will usually beresponsible for the whole of the documentation. He will be expected tohave experience of harmonising the various items of Conditions ofContract and of co-ordinating the work of measurement engineerspreparing the payment documents as well as of co-ordinating theSpecification with the designers involved. He will write part of thedocuments, probably the amendments to a standard form of Conditionsof Contract, the whole of the Specification and perhaps part or thewhole of the Payment Documents. In addition to his co-ordinatingfunction, his most important duty will be to draft the specialrequirements and limitations and to resolve the constructionalproblems arising from the design in a manner which will enable acontractor to devise economical methods of construction to suit thoserequirements. It is all too easy for design limitations to be ignored ormisinterpreted; it is the business of the engineering draftsman toensure that those requirements are properly communicated.

1.7The Written Utterance and The Context

The role of the written utterance is reasonably clear. In it thedraftsman combines all the threads of need and intention, oftechnique and materials, of legal requirements and industrial rules,and of social and environmental context, to frame the basic rulesrequired to achieve his client’s purpose and bring the necessaryengineering scheme to fulfilment. The contract as a whole willgenerally have to cover all these aspects, but instances arise where allthese aspects have to be encompassed within a small part of thedocument writing. The following examples illustrate these points.

An example of external environment affecting only part of adocument occurred when drainage had to be provided to maintain thestability of a politically and environmently sensitive hillside. Thiscould only be carried out by wells drawing water from the superficialstrata above a hard bedrock but, as the client did not wish to beburdened with long term pumping, it was necessary to provide atunnel in the bedrock (to be constructed by a specialist contractor) towhich the wells drained. Data was required concerning the effects ofblasting on the hillside (so as to formulate safety limitations for theuse of explosives in the tunnelling) and blasting tests had to be carriedout by the contractor dealing with the hillside (as a small part of aroad contract), prior to drafting the tunnelling Specification. However,these tests could not be carried out until other measures to improvestability had been undertaken by the hillside contractor and the testshad to be completed at a date which would permit the tunnelling


contractor sufficient time to complete his work to meet the samecompletion date as the main works affecting the hillside. As a result,the document drafting involved cross references between both theContracts and to clauses in the Conditions of Contract dealing withprogramme and with sectional completion. It was also necessary toprovide cross references between Specification clauses describing therequirements for testing the effects of explosives and those dealingwith the stability measures required before such tests could beundertaken, as well as provisions for a specialist to instrument andcollect and interpret the data and for the time for completion of all therelevant operations.

In the foregoing example the external context was particularlyimportant; political and environmental sensitivity were stressed inother clauses of both the Contract for the hillside works and thetunnelling contract, but these considerations formed only a small partof the external environment for which the documents had to bewritten. Account had also to be taken of the technical level ofengineering methods, of the availability of materials, of currentcommercial considerations, of the character of available constructionmethods in the area concerned (particularly whether labour ormachine intensive) and of many other matters which are implicit inthe rules laid down in the document or in the knowledge necessary forinterpretation of what has been written.

An obvious example of the direct effect of the construction methodslies in the measurements of excavation. In a context where handexcavation is the normal method, excavation in trenches will normallybe in depths of 1.5 m, this being the depth that a man cansatisfactorily throw material up to the next level where it is shovelledup either to the ground level or to the next 1.5 m level. On the otherhand, where machine excavation is usual, excavation is measured thefull depth and the maximum and minimum depths are stated. Thesealternatives provide rules suited to the alternative context of availableconstruction methods.

An example of the indirect effect of social organisation on documentprovision arises in connection with aggregates for concrete work. Thespecification for such aggregate is likely to be related to the technicalrequirements for concrete but, in the United Kingdom which has ahighly developed quarrying and sand and gravel industry it is implicitthat aggregates will be provided by suppliers from existing pits orquarries and samples of the material will be available at the time oftendering. In countries such as India, where there is very littledevelopment of the aggregate supply industry, it is implicit that theaggregate will be quarried and excavated by the contractor for the


work and that, for this reason, samples are unlikely to be availablebefore the work commences.

The meaning of all documents is affected by the external contextand the draftsman must be aware of such implied meanings. As anexample, a requirement that communications should be by telexobviously implies a greater speed of communication than second classmail, even if it is only provided to give written confirmation to verbalinstructions.

1.8Clarity and Ambiguity

One of the most important causes of lack of clarity is the presence ofambiguities, i.e. of language capable of more than one meaning.Ambiguous words are not to be confused with homonyms, which arewords with different meanings but which are spelt alike. There canbe no doubt, for example, that the word “rock” used in a mechanicalengineering specification refers to oscillation and not to a naturallyoccurring hard stratum. The context in which the word is used willgenerally show clearly which word is intended. There will, of course,always be some borderline cases of homonyms which are ambiguous.An example of such is the word “construction”, which in anengineering contract would be expected to have the meaning “tobuild”, rather than the lawyer’s meaning “to construe”. Because manyof the readers of such documents may not be familiar with the lattermeaning of construction, it can give rise to ambiguous interpretations;the meaning “to construe” should be avoided in engineering contracts.

Syntactic ambiguity generally arises from the incorrect constructionof sentences, which gives rise to alternative possible meanings. Anexample is the sentence–

The Engineer will instruct the Contractor promptly to correct thefault.

It is not clear whether the Engineer or the Contractor is to actpromptly. This type of ambiguity can be overcome by careful attentionto the words and phrases and the sentence construction adopted indrafting and is dealt with in Chapter 2.

Contextual ambiguity may be internal, i.e. it may arise where oneprovision of a document contradicts another provision in the same or arelated document. Although such differences may be found by carefulchecking of the drafts, such ambiguities are best avoided by carefulattention to the form of the document, so as to achieve a structuredsegregation in conjunction with appropriate cross referencing. This


aspect is dealt with in Chapter 3. Contextual ambiguity may alsoarise from external causes. As an example, the meaning of the term“artificial obstruction” is clear within the context of a contract fordredging part of a river. Its meaning may become uncertain if astatutory authority closes part of the river not being dredged, whichmay temporarily prevent disposal of dredged material to the areaselected by the Contractor as a spoil dump. Whether an artificialobstruction is limited to a physical item or may include a statutaryobstruction will probably have to be resolved by reference to thecontext in which the work is carried out as well as the context of thedocument wording.

Clear drafting and the avoidance of ambiguities depend both onexperience of drafting and of the subject matter, together withknowl edge of the general character of such ambiguities and of thedevices available to minimise them. Although this book explores theknowledge and the devices, it cannot, of course, be a substitute forexperience.

1.9Vagueness and Generality

Vagueness and generality are not to be confused with ambiguity. Inthe example of syntactic ambiguity given above, reference to actingpromptly is not vague, but it is ambiguous because it is not clearwhether it applies to the Engineer or the Contractor. Similarly, areference to “hard rock” is not ambiguous, but it is vague because thedegree of hardness is not defined.

Vagueness may be necessary due to the current state of knowledgeconcerning matters being specified or due to lack of local knowledgeconcerning the work to be done. This applies in civil engineeringparticularly to matters concerning soil mechanics, hydrology, andother branches where local knowledge may be limited, but it may alsoapply to items such as supervision, where advance information isinsufficient or where it is inappropriate to be more precise. Anexample of the latter use of vagueness occurs in the phrase“superintendence shall be given by sufficient persons having adequateknowledge of the operations to be carried out”; the phraseology isdeliberately vague because it is neither appropriate nor desirable inConditions of Contract (from which this phrase is extracted) to specifythe requirements more precisely. In specifications for design, anelement of vagueness is essential because particular matters may notbe applicable to all the possible designs for the item being specified. Acommon phrase in design specification “consideration shall be givento…” is intended to indicate a desirable characteristic to be


incorporated if it can be achieved within the requirements of othercriteria. Such phrases are both appropriate and essential;appropriateness and the degree of vagueness must be related to thesubject matter and to the intentions which are to be communicated,matters which depend not only on circumstances but also upon thecharacter of the drafting and the judgement of the draftsman.

Whereas ambiguity refers to uncertainty of meaning whilevagueness refers to imprecision, generality deals with reference toclasses of items or objects. Thus, reference to a “brass pin” is generalbecause it neither states the type of brass nor the dimension of theitem referred to as a “pin”. Reference to a brass pin is neitheruncertain nor vague, but allows for a variety of objects to be includedwithin the description. Similarly, a reference to “aluminium doorfurniture” allows for a wide variety of knobs or handles within thisgeneral description. Generality is essential where some degree offreedom of choice or some element of variety is required and it is anessential feature in all communication. It is for the draftsman, in eachinstance, to adopt the degree of generality which is appropriate. Inmany cases overprecision is disadvantageous.

1.10Legal and Technical Expressions

Legal expressions should be used very cautiously by engineeringdraftsmen. The meaning of such expressions often differs from themeaning assumed by non-lawyers; it is not uncommon for engineers tomisinterpret legal expressions or to attach meanings to them which donot correspond to lawyers usage. Moreover, most of the readers andthe users of engineering documents will not understand the meaningsattached to legal expressions and are likely to misinterpret theintentions of clauses which incorporate such expressions. As a generalrule, legal expressions should not be used other than in Conditions ofContract, and should be used with caution in that case. Engineersdrafting Conditions of Contract (or amendments to them) should befully aware of the manner in which lawyers interpret the legalexpressions which are in them (not merely the definitions given in alegal dictionary) and should make a practice of adopting ordinarylanguage whenever possible. Matters which are outside the expertiseof engineers (such as clauses dealing with bankruptcy) should be thesubject of legal advice.

All but a very few Latin phrases should also be avoided. Althoughthey are much favoured by lawyers, very few engineers, managers ortradesmen concerned with engineering contracts are likely to


understand them and they are unlikely to form an effective means ofcommunication.

Technical terms are essential in all branches of engineering andconstruction, but they should be used only where necessary and not asa substitute for plain English. Excessive use of technical terms islikely to result in a document which degenerates into a string oftechnical jargon, which can confuse both the writer and the readerand lead to misunderstanding. As previously pointed out thedraftsman should pay careful attention to the context in whichtechnical terms are used; different branches of engineering anddifferent trades make use of similar terms with different meanings.Moreover, different countries and different districts may use similarexpressions with different meanings. As an example, a joiner in thesouth of England is usually a tradesman who makes items such asstairs or windows in a workshop, whereas in the north of England theterm is applied generally to all carpenters. As in all other mattersconnected with drafting, it is essential to recognise the languagehabits of the audience.

1.11Interpretation in Relation to the Whole Contract

It is a legal rule that “The intention of the parties has to be collectedfrom the whole of the contract, and particular clauses which areambiguous must be construed in the context of the whole document”.The various clauses are interdependent and should not be readseparately. An apparent ambiguity could thus be resolvable in termsof the remainder of the contract. On the other hand, different parts ofa contract may include contrary provisions concerning the samematter, resulting in ambiguity even though each of the clausesconcerned are themselves clear when read individually. This is mostlikely to happen when comparing the provisions of the variousdocuments forming the contract; unless the engineer drafting theSpecification is familiar with the whole of the contents of theConditions of Contract, he may repeat elsewhere the provisions madein the Conditions, but with a different form of words which createambiguity.

When dealing with lengthy documents (as in many engineeringcontracts) it is very difficult to avoid interaction between the variousclauses unless the documents are drafted in accordance with a clearand logical plan. Such a plan enables the draftsman and the reader toknow where, in the document, a particular provision should beincluded or omitted and so enables the various provisions to besegregated in a manner which will minimise interaction. It must be


recognised that a jumble of miscellaneous provisions scattered atrandom throughout a document is not conducive to clarity orcomprehensiveness, nor is it easy to recognise, in such a document,overlapping provisions which can give rise to misunderstandings.

It must be appreciated that a logical arrangement for each documentin the contract and for the relationship between the variousdocuments is an essential means of reducing ambiguities within thewhole document. The logic will vary from document to document andfrom contract to contract, although it is possible to formulate basicprinciples which will assist in arriving at logical arrangements.General matters connected with the logic and form of documents areconsidered in Chapter 3; subsequent chapters examine the logicalarrangement and form of the various types of document which makeup the usual forms of engineering contracts.

1.12Checking

A story is told (by Max Abrahamson) of a parliamentary draftsmanwho, when asked by a friend what he had done that day, said, “in themorning I inserted a comma in a draft and in the afternoon I took itout again”. The story is probably apocryphal, but illustrates the carewhich needs to be taken to produce clear and comprehensivedocuments. Unfortunately, engineers rarely have the time which wasavailable to that parliamentary draftsman; in practice, documents areusually prepared to tight deadlines and within tight budgets whichstrictly limit the time available to the draftsman to consider theniceties which should be incorporated in the document. If the ordinaryengineering firm worked in the same manner as that parliamentarydraftsman it would rapidly go out of business.

All documents ought to be independently checked to identify errorsand ambiguities. Because of the conditions under which the draftingof engineering documents take place there is often insufficient timefor the draftsman to reread and redraft his original more than once. Itis quite common for any necessary redrafting to be limited to theperiod needed to check the typist’s transcription of the originalmanuscript or dictation. Because of these conditions it is essentialthat documents should be independently checked by a senior engineerwith experience of both design and drafting, who can appreciate therequirements of the design and who can assist in eliminating anyambiguities in the text or between different parts of the document. Itmust be recognised that, in the course of preparing a lengthydocument, the draftsman is likely to become so involved in theminutiae of design and construction as to overlook important related


matters. If time is available for the document to be set aside for aperiod, so that the original draftsman is able to take a fresh look at it,then many of those problems can be overcome. This is, however, notusually the case and the only satisfactory solution is to provide forindependent reading and examination of the documents. Estimates ofcost and time in preparing the documents should make allowance forthis.


20

CHAPTER 2Words, Sentences and Punctuation

2.1Avoiding Ambiguity

The use of words and phrases unambiguously is the aim of alldocument drafters, whether concerned with an engineeringspecification or a partnership deed or an Act of Parliament. Theproblems involved have been highlighted by various court judgementsand have been analysed authoritatively by writers on legal drafting.Those writers have drawn attention to particular difficulties whichhave arisen and have formulated some useful rules, but have beenmainly concerned with the drafting of wills, with land transactionsand with legislative drafting. Nevertheless their work is equallyapplicable to the use of words unambiguously in engineeringdocuments and, incidentally, to improve their readability; this chapteris concerned with translating the relevant parts of their work intoterms and examples familiar to engineers.

2.2Grammar and Usage

Many of those engaged in professional writing and document draftinghave long forgotten the grammatical rules which they learned atschool; they write by ‘ear’, based upon their current experience of theEnglish language. Sir Ernest Gowers has pointed out that “Grammarhas fallen from the high esteem that it used to enjoy” and thegrammarian Jesperson has said that the grammar of a language mustbe deduced from a study of how good writers of it in fact write, not howgrammarians say it ought to be written. George Orwell went so far asto say that “correct grammar and syntax are of no importance as longas one makes one’s meaning clear”. Clearly, the present view is thatthe writer must expect to rely upon current usage rather than the

rules of formal grammar, which are based upon much earlier, andoften outdated, usage.

English phraseology is not necessarily logical. Gowers points outthat the common phrases ‘vexed question’ and ‘light the fire’ can beconsidered illogical as you cannot vex a question and a fire issomething which is already alight. In an engineering context we cancite the phrases ‘the second lowest tender’ and “omissions made incompliance with Engineer’s instructions” as illogical; logically therecan be only one lowest and you cannot make an omission. All thesephrases represent good current usage and there should be nohesitation in using them in documents, where appropriate. Specialcare must however be taken to avoid any ambiguity which might giverise to the argument that an alternative meaning is preferablebecause it is more logical. As an example of this, the use of a phrasesuch as “the second highest tidal level” has a clear meaning if it refersto a single set of tide level data; if several sets of tide level data areavailable, taken at different times, then the phrase might beinterpreted to refer to the highest level in the second set of tidal data.An experienced draftsman would usually give the actual level ratherthan use a general phrase, even if this involved repeating the samelevel a number of times.

Although it is important to avoid using words which maythemselves be ambiguous (known as semantic ambiguity), it isavoidance of ambiguity in the arrangement of words (ambiguity insyntax) which gives rise to the greatest difficulty. In the statement—

A welder may be rejected by the inspector if he has not passedthe specified tests

the words may be interpreted as meaning that it is the inspector whohas to pass the test, although the context will show that the tests areapplied to the welder. This statement should be drafted to read—

The inspector may reject any welder who has not passed thespecified tests.

Most of this chapter is concerned with avoiding syntactic ambiguities.

2.3Choice of Words—Reference Books

The English language has a large vocabulary of synonyms andsynonymous phrases from which to choose the most effective for aparticular purpose. It is often difficult for the draftsman to recall from

22 WORDS, SENTENCES AND PUNCTUATION

his memory the word or phrase which he needs and some assistance isthen required. This is illustrated by the choice of the phrase“consistent with” in—

The works shall be constructed in a manner consistent with theEmployer’s statutory duties.

The alternatives, such as “in accordance with” or “compatible with”were considered less satisfactory, the acceptable phrase being chosenfrom the alternatives given in the reference books.

Technical terms probably cause the least trouble; they tend to beprecise and have few synonyms in the context in which they are used.The most useful references are the various technical glossariesavailable, particularly the British Standard glossaries. The Roads andBridges Specification refers to B.S. 892— Glossary of Highway Terms,for technical definitions applicable to road work; this is a practicewhich is well worth following.

The use of legal terms is often unavoidable in certain documents. Itis essential, however, that engineers using legal terms should be quitesure of their meaning and the manner in which they may be used. Agood legal dictionary is an essential reference, although it is nosubstitute for that knowledge of contract law which is today essentialto the practising engineer.

A good general dictionary is an essential tool in drafting. The smallpocket dictionaries are not really satisfactory and anything less thanthe Concise Oxford Dictionary, or its equivalent, should not beconsidered.

The most useful reference book for choosing the appropriate word isRoget’s Thesaurus. It was first published in 1852 and consists of listsof words arranged under descriptive titles which are intended torepresent the idea behind the words listed. This arrangement, togetherwith a reference index equivalent to a large vocabulary, enables thewriter to examine a whole series of comparable words and choose themost appropriate. There are today many editions based upon Roget’soriginal arrangement; for use in drafting it is important to have asubstantial edition with a large vocabulary, although this does nothave to include technical terms. The smaller editions, such as thePelican, do not give a large enough vocabulary and should be avoided.

DRAFTING ENGINEERING CONTRACTS 23

2.4Voice and Tense

Verbs expressing an action to be taken should be in the active voice;the passive or impersonal form may lead to ambiguity in decidingwhose responsibility it is to take the action. Thus—

The Contractor shall construct diversion ways

makes it clear where the responsibility lies, whereas—

Diversion ways are to be constructed

leaves some doubt as to whether they are to be constructed by theContractor or the Employer. This can be important if busy publicroads are diverted and can give rise to substantial claims from theContractor. Contracts are generally made in respect of obligations tobe carried out in the future and should, therefore, be written generallyin the future tense and in the third person. However, it is notappropriate to use complicated forms of words in order to ensure thatall verbs are in the future tense; in most cases where it is appropriateto use verbs in the present or past tense it is implicit that this presentor past tense is taking place in the future. It is not necessary to say—

“If the Engineer shall be of the opinion that any part of the Worksshall have been substantially completed and shall havesatisfactorily passed any test…”. (ICE Conditions)

It is more satisfactory to say—

If the Engineer is of the opinion that any part of the Works hasbeen substantially completed and has satisfactorily passed anyfinal test….

Because completion must be in the future, it is necessarily impliedthat the action is in the future even though the verbs are in thepresent or in the past tense.

2.5Arrangement of a Sentence

The variety of subject and content in engineering contracts rangesfrom complex legal clauses concerning the vesting of goods in the


Employer, as a safeguard against the Contractor’s bankruptcy, tosimple instructions such as—

The Contractor shall remove from the Site, without delay, allcement which has deteriorated.

No single sentence arrangement will suit all these requirements. Forthe complex legal sentence, reference is often made to the rules laiddown by George Coode in his essay “On Legislative Expression”published in 1843, which was intended to improve the drafting oflegislation. He said that the legislative (or legal) sentence shouldalways be arranged in the following order (the terms case, condition,etc. are Coode’s)

(1) the case or circumstances with respect to which or the occasion onwhich the sentence is to take effect;

(2) the condition, what is to be done to make the sentence operative;(3) the legal subject, the person enabled or commanded to act; and(4) the legal action, that which the subject is enabled or commanded

to do.

One of his examples is—

(1) (case) “Where there is any question between any parishestouching the boundaries of such parishes,

(2) (condition) if a majority of not less than two thirds in number andvalue of landlords of such parishes make application in writing,

(3) (legal subject) the Tythe Commision for England and Wales,(4) (legal action) may deal with any dispute or question concerning

such boundaries.”

This form is often convenient in engineering documents as in thefollowing example taken from a specification—

(1) (case) If the Statutory Undertakers or other parties havingwayleaves

(2) (condition) desire to carry out any work on the site in connectionwith repairing, maintaining, taking up and relaying of gas, waterand other mains, sewers, wires or cables etc.

(3) (legal subject) the Contractor(4) (legal action) shall afford every facility for the execution of this

work at all times of the day or night and in such manner as theEngineer may direct.


Many sentences can be advantageously rearranged in the formproposed by Coode. In many cases, however, either the case or thecondition or the legal subject is stated in earlier sentences or isimplied by the context. This is illustrated by the following examplefrom a specification—

In all cases where the cube tests required by the Clause 2.103have not satisfied the provisions of Clause 2.104 and for othercases as may be directed by the Engineer’s Representative, corespecimens of 150 mm nominal diameter shall be cut from thehardened concrete of that portion of the works in question for thepurpose of examination and testing.

In this case the legal subject (the Contractor) is implied by thecontext, although, because the passive voice has been used, this maynot be immediately obvious. The sentence may be rearranged asfollows, using the numbers to identify case, condition, etc.–

(1) For the purpose of examination and testing, (2) in all caseswhere the cube tests required by Clause 2.103 have not satisfiedthe provision of Clause 2.104 and for such other cases as may bedirected by the Engineer’s Representative, (3) the Contractor (4)shall cut cores of 150 mm nominal diameter from the hardenedconcrete of that portion of the Works in question.

Coode’s rules should be treated only as a guide; where an explanationof the reason for an action is included, it may be desirable to put thecondition first, as in the following—

In order that the softening or deterioration by exposure of thesurface of an excavation may as far as possible be avoided (inexcavation for foundations in clay and soft material andwheresoever the Engineer’s Representative shall direct), theContractor shall leave a bottom layer of excavation not less than100mm thick undisturbed, to be removed subsequently onlywhen the layer of blinding or other concrete is about to beplaced.

Many sentences, particularly in specifications, consist only of astatement or an instruction, such as—

The site comprises the area of the Permanent Works togetherwith the area allocated for the Contractor’s workshops andstores, all as shown on the Drawings,


or—

Demolition shall be carried out generally in accordance with therequirements and recommendations of BSCP 94— Demolition.

The case and condition are not required in these sentences;alternatively, it may be argued that the case and the condition areimplied by the context or by earlier statements. These sentences,comprising only the legal subject and the legal action, are clear andunambiguous; it is important however, to avoid inadvertently addingthe condition at the end. This may be illustrated by the example givenpreviously—

A welder may be rejected by the inspector if he has not passedthe specified tests.

The phrase “if he has not passed the specified tests” represents thecondition in the sentence which, when tacked on the end of thesentence, gives rise to ambiguity. An alternative rearrangement tothat given previously, based upon Coode’s rules would be—

(2) If a welder has not passed the specified tests, (3) the inspector(4) may reject him.

These rules are intended to assist the draftsman to develop a clearand unambiguous style. They are not intended to limit sentenceformation: the one golden rule is that whatever arrangement is usedin forming sentences the result should be clear and unambiguous.

2.6Short Words and Short Sentences

Clarity of expression in English is most easily achieved by the use ofshort sentences and, if possible, using the ordinary relatively shortwords common in everyday usage. The following specification clauseshows what can be achieved in this style—

All concrete surfaces shall be reasonably smooth and true andshall comply with the specified tolerances. Any fins which mayoccur between boards or panels shall be removed and any holesfilled with 1:2 mortar as soon as possible. Any area requiringtreatment, after stripping as outlined above, shall afterwards berubbed down with a carborundum block and washed perfectlyclean before the application of curing membrane. No surface


treatment shall be carried out until the surfaces have beeninspected by the Engineer’s Representative.

Because of the need, in many cases, to qualify statements or to addprovisos or exceptions, it is often difficult to achieve this simplicity.Moreover, the style is often considered inelegant because of thetradition (in legal drafting) of lengthy and complex sentences usingthe minimum of punctuation. The complex style is, however, graduallybeing ousted and the draftsman may confidently adopt the simplestyle of short sentences, particularly in specification writing.

2.7Consistency of Terminology

The golden rule of drafting is—never change your language unless youwish to change your meaning and always change your language if youwish to change your meaning. For example, if reference is made to‘cost’ it should not afterwards be referred to as ‘price’; or if firms aredescribed as ‘hauliers’ they should not, elsewhere in the document, bereferred to as ‘haulage contractors’ unless it is intended to make adistinction between hauliers and haulage contractors. It is essentialthat the draftsman rigorously uses the same expression where heintends the same meaning, despite the fact that this may give rise to amonotonous style. Avoidance of ambiguity is much more importantthan elegant variation. If a lengthy expression has to be repeated anumber of times in this way, then it is worthwhile providing adefinition or a short substitute term.

When drafting a lengthy document the terminology used in an earlypart of the document is easily forgotten and changes in terminologycan arise in a later part of the document. One of the importantfunctions of checking the draft is to seek out such changes interminology and to ensure that they are corrected.

This can be a tedious job when using two standard documents whichwere not originally drafted with the intention that they shouldinterrelate. An example of this is the Roads and Bridges Specificationwhich was drafted for use with the ICE Conditions and uses theterminology defined in those Conditions. If the client wishes to use GC/Works/1 with that Specification, the draftsman must either amend thedefinitions and the corresponding references in the Conditions ofContract or he must insert a suitable definition in the Specificationsuch as—

Any reference to the Engineer in this Specification shall beconstrued as a reference to the SO.


In addition it is necessary to seek out the occasional cross referenceand any use of terms different from those used in the Conditions andto individually correct them. As these differences may only amount toa handful, in a document of about two hundred pages, this is difficultto achieve without very careful checking.

The Drawings form part of an engineering contract and it isessential to ensure that terminology and instructions on the Drawingsdo not differ from those in the Conditions of Contract and theSpecifications.

2.8Repetition

One of the ways of ensuring consistency of terminology is to avoidrepeating provisions and phraseology from earlier parts of thedocument. The draftsman or the typist may not repeat the provisionusing exactly the same words as was previously used and this will causeconfusion in interpretation of requirements. The following example istaken from a specification for a nominated subcontract. It wasprovided that—

If, after the Subcontractor has commenced erection, the Engineeris of the opinion that insufficient equipment, material and labourhas been supplied to complete the work within the specifiedperiod, then he may instruct the Subcontractor to provideadditional equipment, labour and materials and theSubcontractor shall forthwith arrange to satisfy the Engineer’srequirements at his own expense.

The ICE Conditions applied to the main contract and also to thesubcontract; Clause 46 of the ICE Conditions deals with the samesubject and the specification clause therefore clashes with it.Moreover, it appears to give the Engineer the power to instruct thesubcontractor directly instead of through the main contractor. Suchrepetition of contract provisions should be avoided. If there is somespecial reason for varying the provisions in respect of thesubcontractor then this would need to be made clear by introducing thespecial provision with a phrase such as “notwithstanding the provisionof Clause 46 of the Conditions of Contract,…” as well as stating(within the special provision) that the Engineer’s instructions will bethrough the Contractor.

One of the commonest repetitions of phrases in specification writingis the continual restatement that work shall be carried out “to thesatisfaction of the Engineer”. Conditions of Contract provide that


workmanship and materials shall be to the satisfaction of theEngineer and it is unnecessary to repeat this in specifications,although it must be admitted that it is sometimes difficult to avoid. Ifthe phrase is repeated extensively it may cast doubt on thecomprehensiveness of the clause in the Conditions because it can beargued that the extensive use of the phrase is intended to indicate thatit does not apply where it is not used, i.e. that workmanship ormaterials do not have to be to the satisfaction of the Engineer whereit is not specifically stated.

The practice of repetition of provisions or phrases should be avoidedas it may seriously affect the interpretation of the contract.

2.9Rules of Interpretation

In choosing his words the draftsman does not, generally, require to beguided by the rules of legal interpretation and precedent. Dickerson in“The Fundamentals of Legal Drafting” states the position simply asfollows—

“These are rules by which courts resolve inconsistencies andcontradictions or supply omissions that cannot be dealt with byapplying the ordinary principles of meaning. They are irrelevantbecause the draftsman who tries to write a healthy instrumentdoes not and should not pay attention to the principles that thecourt will apply if he fails.”

Lord Wilberforce has stated that—

“The use of precedents to attribute to plain English words ameaning derived from the use of those words in other documentsis always of doubtful value”.

What is required is that the draftsman should choose his words andhis syntax to give a clear and unambiguous meaning in ordinary plainEnglish.

There are two questions of interpretation, however, of which thedraftsman must take note.

(1) Where a list of items which may be considered to form a class isenumerated, any generalisation following those items will belimited to that class of item unless otherwise specifically stated.For example, in the phrase “concrete mixers, mortar pans,grouting pans or any other plant” the words “any other plant” will


be interpreted as referring to any other plant of the type ofconcrete mixers, mortar pans or grouting pans; excavating plantor compacting plant will, for instance, be excluded from thedescription “any other plant”. This is known as the “ejusdemgeneris” rule. It equally affects general statements which arefollowed by specific requirements (see 2.10 below)

(2) Qualifying phrases apply only to the word or phrase immediatelybefore them or following them. For example in the phrase “pipesor fittings or components of corrosion resisting material” only‘components’ would be interpreted as being of corrosion resistingmaterial. This is discussed in 2.11 below.

2.10Elaborating a General Statement

When a general requirement is included in a document it is oftendesirable to emphasise particular aspects of that requirement. Thus,on the subject of noise control—

The Contractor shall comply with the general recommendationsset out in BS 5228—Code of Practice for Noise Control onConstruction and Demolition Sites. All vehicles and mechanicalplant used for the purpose of the Works shall be fitted witheffective exhaust silencers and all compressors shall be soundreduced models fitted with properly lined acoustic covers.

The ejusdem generis rule referred to in 2.9 (1) applies in this case also,i.e. the interpretation of this clause is likely to be that therequirements to comply with BS 5228 are limited to the soundreduction of construction plant, whereas the draftsman intended thatthe whole of the requirements of BS 5228 should apply and also thatparticular measures should be taken for the sound insulation ofvehicles, mechanical plant and compressors. The solution is to saythat the general statement is not to be limited by the particularrequirements; the second sentence should be redrafted as follows—

Without prejudice to the generality of the foregoing, all vehiclesand mechanical plant used for the purpose of the Works shall befitted with effective exhaust silencers and all compressors shallbe sound reduced models fitted with properly lined acousticcovers.

Similar considerations apply where limitations are to be insertedwhich might be interpreted as affecting other provisions of the


contract. This situation might arise in connection with the noisecontrol clause referred to above if limitations are imposed on workinghours of plant. Most contracts have provisions concerning generalworking hours (both daily and weekly) and, to ensure that these arenot affected by limitations applied solely to plant, the form of draftingshould be—

Without in any way limiting any other applicable provisions ofthe Contract, the working hours of plant shall be restricted toMondays to Fridays between 07.30 hours and 19.00 hours andSaturdays between 07.30 hours and 13.00 hours.

The phrase referred to in 2.9 (1) above can be similarly dealt with if itis intended to preserve the generality of “any other plant”. Works onlegal drafting suggest that one should add the following sentence—

The generality of the words ‘any other plant’ is not to be limitedby the preceding particular words

This phraseology is rarely used in engineering documents. The moreusual practice is either to provide particulars covering sufficientclasses of plant, thus avoiding any practical limitation of the phrase“any other plant”, or to redraft with a linking phrase removing thelimitation, thus—

“Any plant including but not limited to concrete mixers, mortarpans, grouting pans, and the like.”

The phrases which have been italicised represent the standardpractice for avoiding limitations of generality resulting from theejusdem generis rule.

2.11Adjectives Qualifying Two or More Nouns

The rule in 2.9 (2) applies to all cases in which an adjective qualifiestwo or more nouns, although the resultant ambiguity may be resolvedby the context. For example, the phrase—

Illuminated signs or bollards

taken without any textual references might be interpreted as referringto illuminated signs and to bollards rather than to illuminated signsand illuminated bollards and might give rise to claim for additional


payment if a subsequent direction is given to provide illuminatedbollards. If the phrase in context reads—

Illuminated signs or bollards, required to provide visibility atnight

then it can be interpreted as a reference to illuminated signs andilluminated bollards. However, it is incumbent on the draftsman toprovide phraseology which is clearly unambiguous; redrafting as—

Illuminated signs or illuminated bollards

or as—

Signs or bollards (both illuminated)

will rectify this.A similar connecting phrase can be used in the example given in 2.9

(2), i.e. it can be redrafted as—

Pipes or fittings or components, all of corrosion resistingmaterial,

so ensuring that the phraseology is not misinterpreted.The interpretation of more complex sentences may baffle even the

best legal minds, as witness the following from an early Motor Car Actof Victoria, Australia—

“Every person who drives a motor car on a public highwayrecklessly or negligently or at a speed or in a manner which isdangerous to the public having regard to all the circumstances ofthe case including the nature condition and use of the highwayand to the amount of traffic which actually is at the time or mightreasonably be expected to be on the highway shall be guilty of anoffence against this Act.”

In one case the judge held that the words which are italicised modify“recklessly”, “negligently”, “at a speed” and “in a manner”; in anothercase the judge held that the phrase did not apply to “recklessly”. Asimilar argument could arise in connection with the following contractrequirement—

The Contractor shall make it a condition of employment that hisemployees shall not park cars adjacent to the Site nor congregate


in, nor play games in the streets adjoining the Site in a mannerwhich will cause a nuisance to local residents during Siteworking hours.

Although the phrase “during Site working hours” clearly applies toplaying games in the streets adjoining the site and probably tocongregating, does it apply to parking cars adjacent to the Site? If itdoes not, then employees are not permitted to park adjacent to theSite, even outside working hours. If this is not the intention then thesentence should be redrafted as follows—

The Contractor shall make it a condition of employment thatemployees shall not:

(a) park their cars adjacent to the Site; nor(b) congregate in nor play games in the streets adjoining the Site; in a

manner which will cause a nuisance to local residents during Siteworking hours.

2.12Use of Pronouns

Pronouns are very useful to the draftsman as a means of improvingreadability; continual repetition is wearying to the eye and may, inpractice, give rise to misunderstandings. However, the primerequirement is to avoid ambiguity; the noun should, therefore, berepeated if the use of a pronoun may result in ambiguity.

There are two situations in which pronouns should particularly beavoided:—

(1) Where the pronoun becomes divorced from the reference phrase,as in the following—

Each cofferdam in the river shall be provided with a sluicegate of appropriate size conveniently situated, together withoperating headgear and platforms, as necessary to enable itto be flooded in case of emergency.

The pronoun “it” is intended to substitute for cofferdam not forsluice gate (flooding the sluice gate would be a very oddrequirement) and it is better to use the noun “cofferdam” in thisinstance rather than use the pronoun.

(2) Where two or more nouns occur in the same sentence ambiguitymay arise due to a doubt as to which noun the pronoun applies.


This is a very common problem when such names as “theEngineer” and “the Contractor” are referred to as in—

The Contractor shall make provision for the Engineer toinspect the source of granular fill if he so desires.

Does the pronoun “he” apply to the Contractor or to the Engineer,i.e. is the Contractor entitled to conclude from the phraseology thathe only needs to make provision for inspection if he desires theEngineer to inspect the sources of granular fill? The draftsmanintended the desire to emanate from the Engineer and he shouldtherefore have reused the noun “Engineer” in order to avoidambiguity.

2.13Singular and Plural, Masculine and Feminine

Questions sometimes arise as to which pronoun to use when referringto a group. Thus, the Engineer may be a partnership or (as oftenoccurs in international contracts) may consist of two parties—oneresponsible for technical matters and the other for financial matters.Today, in all but the smallest contracts, the Contractor is likely to be alimited company or corporation, or may be a partnership of limitedcompanies or a consortium. Similar considerations apply to Employersand to public authorities. Furthermore, the gender and the number ofpersons forming a party or entity referred to in the contract, maychange during the course of the contract.

Although there is no rule concerning the pronoun to be used theconvention normally adopted is:—

(a) The number of the pronoun follows the number of the noun itreplaces, i.e. the Engineer or the Contractor (and other similarentities) are considered singular persons, but ‘the HarbourCommissioners’ and other similar entities are considered plural.

(b) All human entities are considered masculine. There is no reasonwhy the alternative of considering them feminine should not beadopted as long as the same convention applies throughout thecontract documents so that any change of gender during theperiod of the contract will not affect the interpretation of thecontract.

(c) The pronouns ‘he’ and ‘they’ are used only to describe persons;inanimate objects are referred to as ‘it’, even though such objects(as, for example, a ship) are commonly referred to as he or she.


Section 61 of the Law of Property Act 1925 confirms a number ofconventions. It provides that—

“In all deeds, contracts, wills, orders and other instrumentsexecuted, made or coming into operation after the commencementof this Act, unless the context otherwise requires—

(a) “Month” means calendar month;(b) “Person” includes a corporation; (c) The singular includes the plural and vice versa;(d) The masculine includes the feminine and vice versa.”

Despite the conventions, it is unreasonable in a modern context to usethe masculine or feminine gender where it is clearly not required. Themost obvious example of this is in the Form of Tender attached to theICE Conditions which commences with the words—

“GENTLEMEN, Having examined the Drawings, Conditions ofContract,…”

The word GENTLEMEN can be omitted without in any way affectingthe sense of the document; its use becomes ludicrous on governmentcontracts addressed to the Secretary of State when that person is awoman.

2.14The Use of Capital Letters

In ordinary English usage capital letters are reserved for the firstletter in a sentence and for the first letter of a proper noun. In legaldocuments defined words and phrases are treated as proper nouns;throughout the document those words in every case have capitalletters, as in the phrase “Date of Commencement of Works” which isdefined in the ICE Conditions. It is, of course, essential to confine thecapital letters to those defined words or phrases and to avoid usingcapital letters for the same words or phrases used in the non-definedsense, as italicised in the following sentence—

The Contractor shall co-operate and co-ordinate with thecontractor constructing the adjoining section of the road…

Generally the definite article does not have capitals; where it formspart of the definition it must be used wherever the defined term isused.


2.15“And” and “Or”

Legal draftsmen recognise that “and” and “or” have many shades ofmeaning and that their careless use may give rise to ambiguities.Many of these difficulties arise in wills and similar documents whichmay have lengthy complex sentences involving relationships betweenmany living persons and their offspring. Short simple sentencesreduce the risk of such ambiguities; they are, therefore, a lesserproblem in engineering documents. Nevertheless, even in simplesentences it is very easy for ambiguities to arise which may result inmisinterpretation and consequent claims for extra costs. Many of theapparent ambiguities can be resolved by reference to the context inwhich the statements are made, but such reference should be treatedcautiously; it is preferable that the words and phrases used beunambiguous rather than that it be necessary to demonstrate themeaning by reference to context.

The use of “and” and “or” is so extensive that it is unlikely that allpossible ambiguities can be catalogued; the following paragraphs setout the main problem areas and pitfalls.

In ordinary use “and” has a conjunctive effect, e.g. a reference to“roads and streets” in a specification describes a class which is thesubject of that specification. In some contexts it can have both aconjunctive and a disjunctive effect as in the phrase “The Contractorshall…provide…transport to and from and in and about the Site…”which appears in the ICE Conditions. Does the phrase “transport toand from” mean that such transport is limited to journeys which areboth to and from the Site or does it mean “journeys to the Site orjourneys from the Site or journeys both to and from the Site”? It canbe deduced from the context that the latter statement is intended; itwould have been better to refer to “to or from and in or about the Site”,since providing for transport to and transport from must necessarilyinclude transport both to and from. Although, due to the context, thephrase is unlikely to give rise to a claim in this instance, there areoccasions where the use of “to and from” (instead of “to or from”) couldgive rise to a claim that ‘transport to‘alone and ‘transport from’ aloneis not included in the contract and should be dealt with separately,particularly where hired transport is used for single journeysinvolving extra costs for returning to the hire yard.

Similar possibilities for ambiguity arise where “and” is usedbetween two or more adjectives. In a contract for site supervisionreference is made to the managing contractor providing “civil andstructural engineers”. Does this mean the provision of civil engineersand structural engineers or of engineers who have both civil and


structural qualifications? Once again context is important but, in thisinstance, if two different types of engineers are required it would bepreferable to say “civil engineers and structural engineers”. A morecomplex problem arises where three adjectives are involved as, forexample, where a design and construct invitation to tender requiresthe tenderers to offer “simple, labour intensive and economicaldesigns”. Does this mean that acceptable designs may be—

simple but not labour intensive or economical, or labourintensive but not simple or economical, or economical but notsimple or labour intensive, or simple and labour intensive butnot economical, or labour intensive and economical but notsimple

or is it intended that “designs shall be economical and also bothsimple and labour intensive”.

It should be noted that “and” in a positive statement changes to “or”in the negative. Thus, “the ground contains both sulphates andchlorides”, but, “the ground does not contain either sulphates orchlorides”.

The use of “or” is usually intended to be disjunctive but aconjunctive meaning may be implied as, for example, in the phrase“transport to or from the Site” which necessarily implies also“transport to and from the Site”. The disjunctive meaning can beemphasised by the use of “either…or”, but this applies only in the caseof two items; for three or more it is necessary to use the phraseology“or alternatively”. Thus, we refer to—

“either A or B”, in the case of two but “A or B or alternatively C…”in the case of three.

Even with this terminology it is necessary to appreciate what is beingexcluded. The phrase—

drainage pipes shall be either clay or concrete,

does not mean that all pipes shall be either clay or concrete, merelythat a pipe shall not be a combination of the two. It is, therefore,within the meaning of the phraseology if some of the pipes are ofconcrete and some of clay. If it is intended that different types of pipeshall not be mixed then it should be stated as—

all drainage pipes shall be either clay or concrete


If, on the other hand, there is merely objection to a mixture of pipes itmay be necessary to put a limitation on this by adding that (as in theRoads and Bridges Specification)—

Only one type of pipe shall be used within any drain lengthbetween manholes.

In some cases “and” can be substituted for “or”, with a small differencein the shade of meaning. As an example, a specification provided that—

The instruments shall be calibrated at the beginning andcompletion of each day’s survey or more frequently if required bythe Engineer.

This suggests that, if a more frequent calibration is ordered, thencalibration at the beginning and completion can be overridden, i.e. asituation could result in which calibration was carried out four timesin a day but not including calibration at the beginning and end of eachday’s working. Alternatively, if and is substituted for or then thissuggests that the increased number of calibration checks must includechecking at the beginning and at the completion of each day’s survey.

Occasionally it is advantageous to use “and/or”, although, due to itspast misuse, it is often deprecated. In the specification provision—

Soil for backfilling into trenches shall be granular material orfirm clay from the excavation…

the intention is that either or both materials could be used; so therequirements could, with advantage, be rewritten—

Soil for backfilling into trenches shall be granular and/or firmclay….

Such usage should be treated with caution; it has been found that, inmany cases, the use of “and/or” can be misleading, especially whenmore than one of these terms appears in a sentence. The worstculprits for misuse of “and/or” have, in the past, been writers ofinsurance policies. Piesse (in “The Elements of Drafting”) gives thefollowing example of the horrific use of this term in a marine policyreferring to goods to be shipped—

“at and from port or ports, place and/or places in the UnitedKingdom and/or continent of Europe and/or United States of


America and/or Canada to port or ports place and/or places inAustralia and/or Tasmania.”

He also gives an example of a nonsense created by the use of “and/or”as follows—

“If the ship is totally destroyed by fire in the Pacific Ocean and/or Mediterranean”

This is obvious nonsense when read with “and”. Although it is unlikelythat such phraseology will be used in documentation of amodern engineering contract, it is worth taking note of theconsequences of excessive use of “and/or”.

An alternative to “and/or” is the addition of the words “or both” as in—

Soil for backfilling into trenches shall be granular material orfirm clay from the excavation or both…

Other more esoteric uses of “and” and “or” have been considered bythe courts, involving complex phraseology of multiple adjectives andnouns, but these are of little interest to engineer draftsmen.

2.16“Shall” and “Will”

It has been common practice among legal draftsmen to use the word“shall” not only as an imperative to state what shall or shall not bedone but also to define circumstances, such as in the phrase “If theEngineer shall be of the opinion…”. As long ago as 1843 George Coode(in his essay referred to in 2.5 above) deprecated this usage; the sameobjections are raised by modern writers on legal drafting. A résumé ofthe arguments is given in 2.4 above under the heading of Voice andTense. Draftsmen of engineering documents are strongly advised touse “shall” only to state what shall or shall not be done and by whomand always to use it (or to use the word “will”) in that context.

Engineering contract documents generally serve two purposes:

(a) to be issued to contractors as the basis of a tender for performingthe work detailed in the document; and/or

(b) as part of a contract for the construction of the Works.

When used for tender purposes, the documents must containstatements of the information and physical provisions to be made


available or to be given to the Contractor by the Employer or theEngineer. Such items might read—

Details of the lands, owners and tenants affected by the Workswill be provided by the Employer

or—

The survey monuments have been constructed in the positionsshown on the Drawings and will be made available by theEngineer…

The use of the word “will” in the document, for such actions bythe Employer or the Engineer, is appropriate and is usually carriedover into the Contract without alteration. This practice has, therefore,become commonplace and is often adopted even when no tendering isinvolved.

The comments on the use of “shall” are not intended to exclude theuse of “may” when the action referred to is not obligatory.

2.17“Such”, “Said”, “Same”, “Because of”

These are all words which should either be avoided or be used to onlya very limited extent. In many cases they merely represent ancientforms of legalese which are gradually going out of use.

The construction “such…as” used, for example, in the followingextract from Clause 7 of the ICE Conditions—

“The Engineer shall have full power and authority to supply andshall supply to the Contractor from time to time during theprogress of the Works such modified or further drawings andinstructions as shall in the Engineer’s opinion be necessary…”

is a proper usage of English and is not included in the strictures onthe use of “such”. However its use as a demonstrative in phrases suchas “such person” or “such material” should be limited to where it isessential as a means of discrimination between a defined noun andthe general use of that noun. The following clause from a specificationis an example of inappropriate use—

The Contractor shall give to the Engineer written notice of thepreparation or manufacture at a place not on the Site of any pre-constructed units or parts of units to be used in the Works,


stating the place and time of preparation or manufacture so thatthe Engineer may make inspection at all stages of the work. Suchnotice shall be given at least two weeks before preparation ormanufacture is due to commence.

In this case “such” is merely a substitute for “the”; the clause would bebetter drafted as follows—

The Contractor shall give to the Engineer written notice at leasttwo weeks before commencement of preparation ormanufacture…

The second sentence of the clause could then be omitted. Anappropriate use of “such” as demonstrative occurs in Clause 17 of theICE Conditions which says—

“If at any time during the progress of the Works any error shallappear or arise in the position levels dimensions or alignment ofany part of the Works the Contractor on being required so to doby the Engineer shall at his own cost rectify such error to thesatisfaction of the Engineer unless such error is based onincorrect data supplied in writing by the Engineer’sRepresentative in which case the cost of rectifying the same shallbe borne by the Employer”.

In this case “such” distinguishes between error in “the position levelsdimensions or alignment” as distinct from other errors which mayoccur. In general, it is preferable to avoid the use of “such” in thesecontexts unless its use is seen as essential discrimination; it can oftenbe avoided by the use of a definition.

The use of “said” as a demonstrative has, except in legalterminology, disappeared from English usage; the authorities on legaldrafting deprecate its use and recommend that it be avoided, as it isoften a mere superfluity or can be replaced by a pronoun. For example“the said material” can be replaced by “it” without affecting themeaning of the sentence. Draftsmen of contract documents shouldavoid any use of the word or of its derivative “aforesaid”.

The same remarks are applicable to “the same” used in ademonstrative sense. In the sentence from Clause 17 of the ICEConditions, referred to above, the phrase—“the cost of rectifying thesame shall be borne by the Employer.” can be rewritten as— “the costof rectifying it shall be borne by the Employer.”


“Because of” is not a phrase often used in contract documents and isbest avoided because of the risk of ambiguity in certain contexts. Therequirement that—

The Contractor shall not remove protective barriers because ofobstructions to personnel movements

is an example of such ambiguity. It is not clear whether the draftsmanmeans that the Contractor shall not remove protective barriers even ifsuch barriers cause obstruction to personnel movements or whetherthe removal of the protective barriers will result in obstruction topersonnel movements. In the former case it would be preferable towrite—

Obstruction to personnel movements shall not constitute areason for the Contractor to remove protective barriers.

In the latter case it would be better to write—

The Contractor shall not remove protective barriers so as tocause obstruction to personnel movements.

2.18Special Phrases

Examples have already been given of some special phrases such as“including but not limited to” which are useful as connecting phrases.The following phrases frequently occur and should form part of thedraftsman’s vocabulary—

(a) “Shall comply with” as in— “The Contractor shall comply with theregulations and requirements of the Electricity Board”.

(b) A similar phrase which is used in referring to matter included inthe document or in another document (rather than in regulationswhich require compliance) is— “in accordance with the provisionsof Clause…”. Where there is a possibility that some of theprovisions may not be applicable, it is usual to say “in accordancewith the relevant provisions of…”; this commonly applies toBritish Standards.

(c) If it is intended to make an exception to some earlier requirementin the document, then the phrase to be used is “notwithstandingthe provisions of Clause…”. The use of this phrase is important toavoid conflict between different provisions of the contract,


particularly between a requirement in the Specification (which isspecific) and a requirement in the Conditions (which is general).

(d) Where it is intended that a matter referred to shall be conditional,the statement may be preceded by the words “subject to” as in“The Employer shall (subject to this clause) serve all suchnotices…”.

(e) Where there is to be a choice from a list the phrase used should be“any of the following-”; where the list is exclusive it may befollowed by the phrase— “but no other”, as in the provision that—“corrosion protection coatings shall be obtained from any of thefollowing manufacturers but no other”.

(f) Where an operation is not continuous the phrase-“from time totime” may be used, as in “The Contractor shall from time to timeprovide such assistance as the Engineer may prescribe”. It canalso be used, in certain circumstances, to discriminate betweenalternatives, as in the provision that “The Contractor shall fromtime to time maintain, reconstruct or divert rights of way…”.

(g) Another phrase for discriminating between alternatives is “ineither event” as in “If the approach is obstructed or the lock gatesdamaged then in either event the Contractor shall…”. If there aremore than two events involved then the phrase becomes “in anysuch event”.

(h) Where there is a provision that may be interpreted as affectingother important matters for which the party concerned isresponsible, then the usual phrase is “this requirement shall notin any way relieve.......of his duties or responsibilities under theContract”.

2.19Phrases Concerning Time

Many engineers are not aware that if a period of time is specified“from” a particular date then that date is not included in thecalculation of the end date of the period, i.e. seven days from firstJanuary will be eighth January. The ICE Conditions state that theTime for Completion shall be calculated from the Date forCommencement of the Works, i.e. if the Works are to be completedwithin three hundred days then the Contractor has three hundred andone days to carry out the work. If it is intended to include the initialdate within the period then the phrase should be “from and including”,or alternatively “on and from” or “on and after”. In modern statutes thephrases “commencing with” and “ending with” a named day are used;these expressions leave no doubt that the day referred to is includedwithin the period.


If a period is to commence “after” a particular date then that date isnot included; this applies also to the expression “within” a specifiedperiod, after a particular date.

Use of the word “until” a particular date is ambiguous as also is theword “to”. If the date is to be included the phrase “until and including”should be used; alternatively “from date A to date B, both daysincluded”.

If work is to be completed “by” a specified date then the day havingthe date is included.

The meaning of day, week and year are clear, but month (by lawmeaning a calendar month) can give rise to difficulties, and is bestavoided, as it varies between twenty eight and thirty one days.Contract periods are best stated in weeks or, if they are short, in days.

When stating periods before and after a particular date care mustbe taken to avoid the “undistributed middle”. For example, if part ofthe Works is to be completed before a certain date and the remainderto be completed after it then that date is not included in either period.

Disagreements often occur when words such as “forthwith” or“immediately” are used. It is preferable to use a specific period ifpossible, as for example “within twenty four hours” or perhaps “withinfour hours” if it is a matter of greater urgency. However, it is difficultto generalise on this point and in many cases it is still necessary touse a general term, the length of time then depending upon thecircumstances of the case.

2.20Punctuation

The older legal writers drafted documents without any punctuation,even omitting full stops and writing from edge to edge of a parchment.This practice has been gradually modified, but even in the nineteenthcentury it was common to omit all punctuation except full stops andoccasional parentheses. The courts tended to ignore punctuation inconstruing documents, based upon a judgement in 1816 in which theMaster of the Rolls stated—

“It is from the words, and from the context, not from thepunctuation, that the sense must be collected”.

This view no longer prevails. Lord Shore in a House of Lordsjudgement in 1918 stated—

“Punctuation is a rational part of English composition, and issometimes quite significantly employed. I see no reason for


depriving legal documents of such significance as attaches topunctuation in other writings.”

The attitude is summed up in the following quotation from Burrows“Words and Phrases Judicially Defined”—

“The principle applied appears that the courts will usepunctuation marks appearing in the document and, whenevernecessary, supply them, but such marks are only used to assist inunderstanding the words. If they are without sense or conflictwith the plain meaning of the words in the document, the courtswill not allow them to cause the meaning to be placed upon suchwords which they otherwise would not have.”

Modern Acts of Parliament are fully punctuated, as are most moderndocuments. Conditions of Contract are generally fully punctuatedalthough the ICE Conditions have been drafted without any commas,except where these appeared in a quotation from the Fair WagesResolution of the House of Commons. The modern tendency is to limitpunctuation marks to essential positions and avoid undueproliferation.

In speech we can vary the meaning of the words by the tone andlevel of the voice and by the position and length of pauses. To alimited extent, punctuation performs a similar function in writing.The actual punctuation used depends on the writer and on the styleand purpose of the writing. For example, in this book where aquotation or example is inserted in or at the end of a sentence toillustrate a point, then it is preceded by a dash; if the quotation orexample is lengthy, then it starts on a new line and is inset. This is notto be confused with punctuation adopted for marshalling and forlisting as explained in Chapter 3. The reader will find that there isconsiderable variation between the punctuation adopted by differentwriters and that literary works (which do not use marshalledsentences and rarely have lists) will adopt a different style ofpunctuation to that used in documents.

There is little to be said about the use of full stops to indicate theend of a sentence except to note that its use with isolated sentences inheadings and the like is becoming uncommon and should be avoided.Question and exclamation marks are never used in document draftingand do not, therefore, require comment here.


2.21Colon, Semicolon, and Dash

The colon and the semicolon were, in the past, considered almostinterchangeable and having a ‘strength’ between a comma and a fullstop, the colon having a little more ‘strength’. In modern practice thefunctions of the colon have been largely taken over by the semicolon(particularly in document drafting), the colon being restricted tospecialist functions.

In drafting practice the use of the colon is usually limited to:

(a) indicating the commencement of item enumeration (ormarshalling) within a sentence, as for example—

…the following provision shall take effect:(i) all sums of money that may be due…;

(b) a mathematical symbol for ‘is to’, as for example—…a mixture of pulverised fuel ash and Portland Cement in the

proportions 15:1…;(c) a slightly heavier stop than a semicolon, equivalent to the use of

the word namely, for example—the requirements for ducts will vary with depth: at a depth less

than four feet and greater than ten feet they shall be surroundedwith concrete Class 22.5/20.

This use is rather rare; an alternative phraseology will avoid it.

The semicolon is most useful for connecting two related requirements,where framing them in consecutive sentences might give rise to theimpression that they might not be connected. It is common to use theconjunction and for this purpose, but the alternative use of asemicolon will often obviate ambiguities which may arise through theuse of and. As an example, the following sentence appears in GC/Works/1—

“Upon the completion of the Works to the satisfaction of the SOthe Contractor shall be entitled to be paid the amount which theAuthority estimates will represent the Final Sum less one halfthe amount of the reserve, and thereafter the Authority may, if hethinks fit, pay further sums in reduction of the reserve”

As an alternative a semicolon has advantages in place of and thus—

…the Final Sum less one half the amount of the reserve;thereafter the Authority may, if he thinks fit, pay further sumsin the reduction of the reserve.


The following example from a specification illustrates the use of morethan one semicolon to connect several common requirements into onesentence—

References in LN 139 to concrete quality A shall be deleted andconcrete Class 22.5/20 substituted; references to concretequalities B and C shall be deleted and concrete Class Esubstituted; references to concrete quality F shall be deleted andconcrete Class 30/10 substituted.

The dash is most commonly used at the commencement of itemenumeration (or marshalling), either with a colon or on its own. Whichalternative the draftsman chooses to adopt is a matter of taste; acomparison of the following quotations illustrates this.

From ICE Conditions—

“For the purpose of this Clause:—(a) the expression “the Act” shall mean…”

From GC/Works/1—

“In this Condition—(a) the expression ‘loss of property’ includes…”.

For a discussion on drafting in the form of item enumeration or“marshalling”, and also of “listing” the reader is referred to Chapter 3.

Quotations and examples are rarely inserted in sentences incontract documents, although they may form part of the data provided.The use of the dash for this purpose (referred to in Part 2.20) is not,therefore, relevant to document writing.

2.22Commas, Brackets, Inverted Commas, and Hyphens

Next to the full stop, commas are the most useful punctuation markbut also the most subject to misuse. They should not be regarded as asubstitute for an unambiguous arrangement of the wording of asentence, but rather as a device to assist readability, particularly incomplex sentences. The ICE Conditions are drafted without a singlecomma, but the FIDIC Conditions (which originally had almostidentical wording) have been punctuated with commas; the readabilityof the FIDIC Conditions improved as a result.

The most obvious use of commas is to separate items listed in asentence. Thus—


Unless otherwise specified, all lighting units shall usefluorescent lighting and be complete with switch gear, starters,ballasts, fuses, and capacitors.

obviously requires commas between the various items to clearlydistinguish between them. A different arrangement of commas or nocommas might alter the meaning in the following way—

…with switch, gear starters, ballasts, fuses and capacitors.

In this alternative, the comma before and has been omitted and it isno longer obvious whether fuses are separate from capacitors or forma combined unit. It has recently become a fashionable practice not touse a comma before and. Authorities on punctuation and legaldrafting do not support this view; it is considered that where there isuncertainty as to whether the last two items in a list are combined orseparate then a comma should be used before the final and. Carey (in“Mind the Stop”) quotes the following instance where the use of acomma before and was essential—

“Five London boroughs…Barnes, Hammersmith, Brentford andChiswick, Fulham, and Wandsworth.”

Without the final comma the reference could be to ‘Fulham andWandsworth’ as a single borough similar to ‘Brentford and Chiswick’.

Although a comma is obviously necessary between consecutiveitems in a list, no comma is needed between a number and thefollowing word. It was previously common to place a comma between anumber and a street name in an address but it is now acceptable towrite, for example, 59 Southwark Street in a formal address or in anaddress given in a document.

Where a descriptive phrase is inserted in a sentence it isappropriate to insert a comma before and after the phrase, todifferentiate it from the phrase being described. Such descriptivephrases are generally not essential to the sentence formation; theymay be omitted from the sentence and made the subject of (or part of)another sentence, but in practice this usually proves cumbersome.Alternatively, the descriptive phrase may be placed within brackets.The following sentence illustrates the point—

Any drainage sumps required shall, where practicable, be sitedoutside the area excavated for the drainage Permanent Works…


The “where practicable” can be made the subject of a separatesentence thus—

Any drainage sumps required shall be sited outside the areaexcavated for the drainage Permanent Works. Where this is notpracticable the Contractor will be permitted to site the sumpswithin the area excavated for the Permanent Works.

This additional sentence is obviously not justified; the originalsentence deals with the matter equally well and more concisely, thusimproving readability. Alternatively, the phrase may be enclosed inbrackets, as follows—

Any drainage sumps required shall (where practicable) be sitedoutside the area excavated for the drainage Permanent Works.

Generally, brackets are used where the descriptive phrase is lessdirectly connected to the phrase being described, but this is largely amatter of judgement and, in many cases, either alternative isappropriate. An example (from the same specification) where bracketswere used illustrates this—

Pipes of nominal diameter greater than 300 mm may (at theContrac-tor’s discretion, unless otherwise provided in theContract) be clay or concrete.

The matter is succinctly summed up by the definition of ‘parenthesis’in the Concise Oxford Dictionary— “Word, clause, or sentence,inserted into a passage to which it is not grammatically essential, andusually marked off by brackets, dashes, or commas”. Dashes arerarely used in documents for this purpose and this use may be ignored.Bracketed sentences are occasionally used in the form of explanatorynotes or as an explanatory description in a title, but which does notform part of that title.

A further use of the comma is to separate phrases which, if notseparated, would give rise to some confusion in the mind of thereader. This may be illustrated from a well known standardspecification which contains the sentence—

When required, concrete for post footings shall be Class Econcrete to Clause 1602.

If the comma after “required” is omitted the sentence could be read asfollows (commas have been inserted for illustrative purposes only)—


When required concrete, for post footings, shall be Class Econcrete to Clause 1602.

This can give rise to temporary confusion in the mind of the reader; thecomma after “required” is, therefore, needed to assist readability. Themisuse of commas for this purpose can give rise to even greaterconfusion; such commas are usually inserted ‘by ear’ and caution isnecessary to avoid excessive use. The following sentence gives a goodillustration of the various uses of commas and brackets and of thebalance to be maintained in their use—

The notice of suspension shall specify the event or eventsconcerned and the date from which the suspension shall bedeemed to take effect (which effective date may be earlier thanthe date of the notice by not more than 28 days) and thesuspension shall be effective until such date as the Engineershall notify the Contractor that the temporary suspension of theformula is cancelled, which date of cancellation shall be when, inthe opinion of the Engineer, the effect of the event or the eventsceases.

Inverted commas are used to indicate words, phrases or sentenceswhich are quoted and should be used only at the beginning and end ofthe actual words quoted; it is not permissible to insert other wordsthan those which occur in the original quotations. If some words areomitted, then this is indicated by dots thus…; these omissions mayoccur at the beginning, the middle or the end of the quotation. Wherean omission occurs in the middle of a quotation, the draftsman mustbe careful to avoid distorting the original meaning; such a distortioncould mislead one of the parties to the contract. There appears to beno definite rule concerning the use of double inverted commas orsingle inverted commas, but double inverted commas are commonlyused at commencement and end of a quotation, while single invertedcommas are used for a quotation within a quotation. Inverted commasare often used where a title or a defined term is quoted although, in thiscase, it is more common to use capital letters in document drafting (asexplained in 2.14 above). An important use is to distinguish ordinarywords which are used as names or quoted descriptions; for thispurpose single inverted commas are more common in documentdrafting, as in the following sentence—

Vitrified clay pipes for foul sewers and surface water drains shallcomply with the relevant requirements of BS 65:1981 and be of‘normal’ type with flexible mechanical joints.


A similar but less common use is when quoting standard phrases suchas the phrase ‘by ear’ used above.

The sole use of hyphens (which must not be confused with dashes) isto form compound words such as ‘push-fit’ or ‘re-made’ or ‘de-watering’. When such compound words become commonplace thehyphen is dropped, as in ‘bypass’. At an intermediate stage, either usemay be acceptable thus ‘dewatering’ is sometimes used in place of ‘de-watering’.

2.23Provisos, Exceptions, Conditions, and Qualifications

The phrases “Provided that” or “Provided always that” occur only inlegal documents; the provisions which follow these phrases arereferred to as ‘provisos’. They are intended to be applicable where ageneral rule needs to be varied or modified in its application toparticular circumstances, but are often liberally sprinkled through adocument to introduce exceptions, qualifications of statements andvarious applicable conditions. Coode describes the proviso as “thatbane of all correct composition”. All the modern authorities on legaldrafting recommend their avoidance, particularly as this does notinvolve any great difficulty. Two examples of provisos used inConditions of Contract illustrate this. In GC/Works/1 a lengthy clausedealing with ‘determination’ has a proviso inserted at the end asfollows (the central part of the clause, which is not relevant to theexample, has been omitted)—

“The Authority may without prejudice to the provisionscontained in Condition 46 and without prejudice to his rightsagainst the Contractor in respect of any delay or inferiorworkmanship or otherwise, or to any claim for damage in respectof any breaches of the Contract and whether the date forcompletion has or has not elapsed, by notice absolutelydetermine the Contract in any of the following cases, additionalto those mentioned in Condition 55 hereof;.........................isprejudicial to the interest of the State: Provided that suchdetermination shall not prejudice or affect any right of action orremedy which shall have accrued or shall accrue thereafter tothe Authority.”

In this case the words ‘provided that’ appear to be superfluous; thereappears to be no good reason why the end of the clause should not bewritten—


…is prejudicial to the interests of the State. Such determinationshall not prejudice or affect any right…

The rather peculiar punctuation used in GC/Works/1 (colon followedby a capital letter) does not appear in the next example, taken from theICE Conditions—

“In the event that the Nominated Sub-contractor shall be inbreach of the sub-contract which breach causes the Contractor tobe in breach of contract the Employer shall not enforce anyaward of any arbitrator or judgement which he may obtainagainst the Contractor in respect of such breach of contractexcept to the extent that the Contractor may have been able torecover the amount thereof from the Sub-contractor. Providedalways that if the Contractor shall not comply with Clause 59B(6)the Employer may enforce any such award or judgement in full.”

There is some justification for this use of the proviso, which can bedescribed as varying the general rule in respect of particularcircumstances. Nevertheless, it is reasonably easy to redraft itwithout the proviso, as follows—

In the event that the Nominated Sub-contractor is in breach ofthe sub-contract, which breach causes the Contractor to be inbreach of contract, the Employer shall not enforce any award ofany arbitrator or judgement which he may obtain against theContractor in respect of such breach of contract, except to theextent that the Contractor may have been able to recover theamount thereof from the Sub-contractor, unless the Contractorfails to comply with the Clause 59B(6) in which case theEmployer may enforce any such award or judgement in full.

The redrafted clause has been punctuated with commas for ease ofreading.

Reed Dickerson in his book ‘The Fundamentals of Legal Drafting’says—

“Provisos have been used for so many purposes (to stateconditions or exceptions or simply to add material) that they tendto be ambiguous. At best they constitute archaic legalisms.Accordingly, provisos should be avoided.”

This advice is equally applicable to draftsmen of engineeringdocuments.


To avoid the risk of ambiguity, exceptions or conditions orqualifications should appear as closely as possible to the matters towhich they refer. General conditions or qualifications applicable tovarious provisions in a clause should preferably be in the firstsentence or sentences of the clause; specific conditions orqualifications and exceptions should be in the sentences to which theyrefer or immediately before or after those sentences; the followingexamples illustrate this point.

One of the commonest exceptions is that used to provide foroccasions when the detailed drawings or the site conditions mayrequire some local change from the general provisions of thespecification. Thus—

“Except where otherwise specified or permitted by the Engineerthe maximum size of the aggregate used in concrete shall be 40mm nominal size”.

Such exceptions are essential (particularly in specifications) to takeaccount of practical conditions in design and construction.

An example of the framing of a different sort of exception appears inGC/Works/1 where it is desired that the Contractor should takeresponsibility for the conditions under which work is to be carried outbut should not be held responsible for the accuracy of conditionsstated in Bills of Quantities, thus—

“The Contractor shall be deemed to have satisfied himself asregards existing roads, railways, or other means ofcommunication with and access to the Site, the contours thereof,…and generally to have obtained his own information on allmatters affecting the execution of the Works and the pricestendered therefor except information given or referred to in theBills of Quantities which is required to be given in accordancewith the method of measurement expressed in the Bills ofQuantities”. (author’s italics)

The following example illustrates a general qualification at thebeginning of a clause—

The following provisions shall apply only where an extension oftime pursuant to Subclauses (1) and (2) hereof has been grantedby the Engineer on account of any of the matters referred to inthe Sub-sections (a) and (b) of this subclause.


The final example illustrates the practice of placing conditions andqualifications close to the matters to which they refer—

Marine aggregates may be used if the contents of chloride salt inthe aggregate, expressed as the equivalent anhydrous calciumchloride percentage by weight of the cement to be used in theconcrete, does not exceed 1.0%. Where the proportion exceeds 0.1% by weight of cement, marine aggregates shall not be usedwith alumina cement nor for prestressed concrete. In addition, inconcrete containing embedded metal, calcium chloride shall notbe added in such proportion that the total anhydrous calciumchloride in the mixture plus the equivalent value of anhydrouscalcium chloride calculated from the chloride in the aggregate,exceeds 1.5% by weight of the cement.

2.24Descriptions of Clauses etc.

A definition in the ICE Conditions says “All references herein toclauses are references to clauses numbered in the Conditions ofContract and not to those in any other document forming part of theContract”; at various places in the text cross reference is made to‘clauses’ and ‘sub-clauses’. The FIDIC Conditions omit the definition,but cross references refer to clauses and sub-clauses. GC/Works/1 alsohas no definition but cross references in the text refer to Conditionsand paragraphs within those Conditions. In other documents of thecontract it is often necessary to cross refer to the Conditions ofContract and also to cross refer within the document and to otherdocuments. Thus, when writing a specification it will be necessary tocross refer between various clauses of the Specification and,occasionally, to clauses of the Conditions of Contract; preambles toBills of Quantities may cross refer to both the Specification and theConditions of Contract. It is convenient (and will reduce verbosity) toadopt distinctive terms when cross referring to the variousdocuments; the following terms can be employed, but it is importantthat, whichever terms are used, they are used consistently throughouteach particular contract:

Conditions of Contract— Conditions and sub-ConditionsSpecifications— Clauses and sub-clausesPreambles to Payment Documents—paragraphs and sub-

paragraphsBills of Quantities and other Payment Schedules—items


The foregoing terminology does not deal with other documents whichmay be found in engineering contracts such as formal agreements,subcontract forms, reports containing data, etc.; cross referencing tosuch documents is rare and, unless extensive references are requiredin a particular case, special terminology would not be justified. A fulldescription such as “paragraph 3.2 of part 2 of volume 5 of the SiteInvestigation Report” may sometimes be necessary but verbosity incross references distracts from the content of a sentence and therebyreduces readability. It is best to avoid cross references such as ‘subsub-clause (a) of sub-clause 2 of clause 5 of section 3’ and simply sayClause 3.5.2 (a).


CHAPTER 3Arrangement and Form of Documents

3.1Order and Logic

It has already been emphasised that documents must be read as awhole. Unless drafting is carried out in accordance with a carefullyformulated plan it will be difficult to ensure that the various parts ofthe documents are consistent with one another and to avoidambiguities and discrepancies arising from interactions andoverlapping between clauses in different parts of the documents andbetween the various documents making up the contract. Moreover,documents which contain haphazard arrangements of clauses aredifficult to read, with the result that some of the provisions may beoverlooked at a time when they should be enforced; ease of readabilityof a document is a most important element in effective administrationof the contract by both the Contractor and the Engineer.

When planning documentation for a contract, two fundamentalprinciples should be adhered to:—

Each document and section of a document should be strictlylimited to the topics and matters intended to be dealt with in thatdocument or section.

The order of dealing with the various topics in each documentshould conform with the natural logic appropriate to thatdocument.

To achieve the greatest clarity it is desirable that each topic or mattershould be the subject of a separate clause which can standindependently and not interact with other clauses. Although thedraftsman should aim at such an arrangement, it is rarely possible tofully achieve it; practical requirements interact in a manner whichdoes not admit their complete separation. A simple example of thisproblem is the specification of the formed surfaces of concrete, which

depend upon the way in which the concrete is made and compactedand also upon the construction of the formwork. Although separateclauses are provided for formwork finishes and for concrete design andcompaction, it is necessary to introduce under one or both headings aprovision relating both concrete and formwork to the finished surfacerequired.

Notwithstanding the practical problem, it is essential that thedraftsman plan and draft on the principle of separation of topics andon restricting each document to the planned type of subject matter. Asan example, the draftsman should avoid inserting pricing provisionsor methods of measurement in the Specification; those provisionsshould be included in the Pricing Document where they can form partof a preamble or method of measurement drafted on consistentprinciples. Occasionally, for clarity and readability, it may benecessary to include in a specification clause a reference to someoperation (most commonly in relation to remedial work) being carriedout at the expense of the Contractor, but such references should bekept to an absolute minimum; other references to costs or paymentshould be avoided.

Natural logic in the arrangement of a document is not easilydefined. It depends upon the nature of the document and upon theviewpoint of the draftsman; there is no definable best arrangement. Inthis context, the dictionary defines logic as a “chain of reasoning”; anumber of consistent chains of reasoning may be equally applicable,providing that the presentation is such that the chain of reasoning isevident to the reader. The application of a consistent chain ofreasoning or logic enables the various provisions to be made on thebasis of general principles applying to the whole or parts of the works;consequently the draftsman can effectively subdivide the documentinto clauses each dealing with one topic (or one aspect of that topic),without overlooking the interaction of those topics, because he is ableto relate them to the general principles and also to one anotherthrough the connecting logic.

Although the principles of order and logic are essential in thedrafting of lengthy and complex documents, they apply equally toshort or small contracts, even when only an exchange of letters isinvolved. Small contracts with short documentation almost invariablyinvolve references to other documents (either explicitly or implicitly)and to technical practices; such basic requirements should, if possible,be made explicit. This requires careful thought and planning; evenwhere such documentation and practices are implicit, the draftsmanand the client should be aware of this fact and of its implications.


3.2Preparing the Framework and Contents

The principles of order and logic require that the various parts of thedocuments be planned so as to ensure that:

(a) all requirements have been included and none have beenoverlooked;

(b) the separate documents forming the contract do not includecontrary provisions;

(c) the provisions in each document do not interact in a mannerwhich would result in conflict between them or in ambiguity orlack of clarity;

(d) the various provisions in each document reinforce one another soas to provide for all the requirements of each part of the Works.

In principle, the requirements of item (a) should be met by setting outthe general requirements for the contract and, on that basis, decidingthe character of the various documents and the requirements to beallocated to each of them. In practice, a number of standarddocuments exist (with clearly defined forms) and these standarddocuments are used in most contracts; the exceptions are generallycontracts initiated by contractors, such as package deal offers,management contracting offers and the like. Even here standardforms rapidly develop, either within an organisation specialising inthat type of offer or within the industry when such offers becomecommon.

The convention adopted in most construction contracts is tosubdivide the overall requirements for the work between fourdocuments as follows—

(i) Conditions of Contract—dealing with the general requirementscommon to most contracts;

(ii) Specification—dealing with the general requirements of theEmployer and the Engineer and with the technical andconstructional requirements for materials and methods requiredby the design of the Works;

(iii)

Method of Measurement—setting out the requirements forpreparing the Bills of Quantities (where these are provided);

(iv)

Bills of Quantities—provides the quantities of the various parts ofthe work and the accepted prices, to enable the final price to becalculated. In the case of manufacturing and erection or offabricating contracts, an appropriate set of standard Conditions ofContract is usually available, but a special Payment Document

ARRANGEMENT AND FORM OF DOCUMENTS 59

(specific to the class of work) would be substituted for the Methodof Measurement and the Bills of Quantities.

In building contracts (based upon a lump sum)it is common tocombine the Specification and the Bills of Quantities and to use theBills of Quantities for the purpose of pricing variations. As a result ofthis standardisation, the overall requirements have to be divided intoclasses appropriate to each standard document and the draftsmanmust be familiar with those standard documents to ensure that thenecessary alterations and additions are made to providecomprehensive coverage for all the requirements of the particularcontract.

Item (b) above will be satisfied if each document is limited to thetopics specified for that class of document. In some cases, provisionsare made in one document for the general aspects of a particulartopic, while another document deals with provisions for those aspectsof that topic which are specific to the particular contract. Forexample, although the ICE Conditions (in Condition 14) provides thatthe Contractor shall furnish a programme, it is often desirable tospecify the type of programme and its contents in the general clausesof the Specification. Another related example is the provision in theICE Conditions for completion in Sections; in this case it is essentialto define, in the general clauses of the Specification, the precise extentof the work in each Section. Where all the provisions in connectionwith a particular topic cannot be limited to one document, thedraftsman must explicitly take account of this in the notes on whichhis drafting is based, to ensure that the provisions in each documentdo not overlap; he should, where necessary, cross reference to providecompatibility between the provisions in each document. An example ofsuch cross reference and further provision is a clause in a highwayconstruction contract, which provides—

The programme required by Clause 14 of the Conditions ofContract shall be in the form of a time location bar chartcovering all the main items of work, laid out in a format whichwill permit progress of the various items of the work to beindicated on it throughout the execution of the work.

The requirements of items (c) and (d) can best be met by formulatingthe contents and arrangement of the whole of the document beforecommencing drafting. This approach enables the draftsman to identifythe interaction of the various parts of a large document before theseinteractions become obscured by the detailed drafting and to prepare afull contents list of all sections, clauses and sub-clauses. This contents


list can then be circulated to other members of the team preparing thedesign and documents, for their comments.

3.3Some Useful Conventions

Although there are no fixed rules applicable to the order and form ofengineering contract documents, there are conventions which areusually, but not invariably, applied. These are:—

(1) Where an interpretation clause (containing definitions) isrequired, it is placed at the commencement of the document or ofthe section to which it applies. This convention applies to mostlegal documents, but not to Acts of Parliament, where theinterpretation clause is placed at or near the end of the Act.

(2) Where the parties to the contract are defined in an interpretationclause, the definitions of the parties are placed at thecommencement of the clause, the Employer being defined beforethe Contractor.

(3) General descriptions are given before descriptions or specificationsof the details. If possible the details should follow closely behindthe general description; however, this is not always appropriateand is likely to depend upon the form and style of the particulardocument.

(4) In description of work, substructures precede superstructures.(5) Descriptions of work to be carried out, and of other duties, precede

the details of payments to be made for such work and duties andthese in turn precede particulars of the timing and methods ofpayment.

(6) Clauses concerning the settlement of disputes are placed at or nearthe end of the document.

In Bills of Quantities the order and form of the document is laiddown in some detail in the Method of Measurement, which is normallya standard document applied to a particular type of work. AlthoughBills of Quantities are widely used throughout the world, the detailedBill based upon a Standard Method of Measurement is peculiar toBritish practice. It is, however, becoming more common elsewhere.

3.4Sections, Clauses, and Sub-clauses

Earlier legal documents were often written in long sentences orparagraphs with little or no subdivision within the document; they


were extremely difficult to read and understand (and no doubt also todraft). Modern contract documents of any length are extensivelysubdivided, to improve readability and assist drafting. Even shortdocuments are normally subdivided into paragraphs. The commonsubdivisions are:—

Sections—intended to cover each of the main topics of thedocument.

Clauses—intended to deal with each subject which is to becovered by the general topic.

Sub-clauses—intended to deal with each of the provisions to bemade in respect of each subject.

Some documents, such as the JCT Conditions and GC/Works/1, arenot divided into Sections. In these documents it is generally moredifficult to find particular clauses; also, the documents often appear tolack logic in the arrangement of clauses, to the detriment ofreadability. In the JCT Conditions, for example, Clause 15 deals with“Practical completion and defects liability” while Clause 21 deals with“Possession completion and postponement”, and between these clausesare others dealing with “Assignment or sub-letting” and Insurances.Failure to group together clauses dealing with similar matters occursalso in GC/Works/1; examples (referred to by prefix C) are—

C 27— “Assignment or transfer of Contract” and C 30— “Sub-letting”, which are separated by C 28— “Date for completion;Extension of time” and C 28A— “Partial possession beforecompletion” and C 29— “Liquidated damages”; C 32— “Defectsliability” is divorced from C 28 and C 28 a, despite the closerelationship between the date for completion and thecommencement of the “Maintenance period”, resulting in failureto explicitly state that the Maintenance period commences at thedate of completion.

By comparison, the ICE Conditions is divided into 25 sections, whichimproves readability and helps the draftsman to take account of theinterrelation of similar matters.

A good example of sectional divisions in specification writing is theHighway Works Specification. This is divided into 26 sections plusappendices, each section covering a particular class of work, anddesigned to allow for substantial amendments and additions to meetthe requirements of each individual contract.

Later chapters deal in detail with the form and arrangement ofindividual documents. It is sufficient here to emphasise the


importance of dividing any lengthy document into sections, eachsection grouping together, in logical order, clauses dealing with thesubjects covered by a particular topic.

The clause is the basic unit of most documents. It should be limitedto one subject only and should be divided into subclauses; each sub-clause should comprise one paragraph and should be limited todealing with one provision in respect of the subject of the clause.Generally, clauses are numbered and titled and included within thecontents list, but sub-clauses are usually sub-numbered and notincluded in the contents list. However, where marginal notes or titlesare used in the documents they are sometimes applied also to sub-clauses and are then included in the contents list; this practice issubject to wide variations, as can be seen by comparing differentstandard Conditions, such as the ICE Conditions and GC/Works/1.

The initial contents list prepared for drafting is best limited toclause headings; sub-clause descriptions are only appropriate where itis intended to use marginal notes and are, in any case, most easilydealt with after the sub-clauses have been drafted. As previouslymentioned, an important advantage arising from the preparation of aninitial contents list is that it can be circulated to colleagues dealingwith other aspects of the project, to enable them to comment on thesubjects of the clauses and to propose additional clauses relevant totheir work. Such comments are most valuable in the early stages ofdrafting, in order to ensure that the clauses comprehensively cover allthe subjects which need to be dealt with.

3.5Marshalling Sentences

Marshalling of sentences is a device used in drafting to split uplong sentences in order to improve clarity and readability and toreduce ambiguity. Although it is used extensively in legal documentsand other explanatory writing (such as, for example, Plain Words by SirErnest Gowers), it is not a device used in literary writings; it appearsto have no accepted word or title to describe it.

Marshalling has been referred to as “paragraphing” by some writers,although paragraphs are not involved when splitting up sentences; ithas also been referred to as “tabulation”, although no tables areinvolved. This latter description would be most unsatisfactory inengineering documents where tables are extensively used. InChapter 2, Part 2.21, the description “item enumeration” is used as aconvenient way of dealing with the use of the colon. The name“marshalling” has been adopted here because the process consists ofsplitting a sentence into phrases or elements which are then


marshalled, by the use of layout, punctuation, and connecting words,to provide a form which enables each element to be read individually.

The following sentence from a specification is a simple example ofhow marshalling may be applied—

If the Contractor fails to lay the blinding layer immediately afterthe approval by the Engineer, the Contractor shall, at his ownexpense, excavate and trim any soil or rock of the foundingstratum which may have deteriorated before the concreteblinding has been laid and shall clean up and remove any blownsand or other unsuitable material which may have entered thefounding area and shall make up any resulting additional depthwith concrete Class E.

In its marshalled form it would read—

If the Contractor fails to lay the blinding layer immediately afterthe approval by the Engineer, then the Contractor shall, at hisown expense:

(a) clean up and remove any blown sand or other unsuitable materialwhich may have entered the founding area; and

(b) excavate and trim any soil or rock of the founding stratum whichmay have deteroriated before the concrete blinding has been laid;and

(c) make up the resulting additional depth with concrete Class E.

The following is a more complex sentence, which could be used inmarshalled form in a specification—

Piles shall comply with the general requirements for concreteand shall be supported, handled and pitched only as described inthe Contract and stored (where so required) by placing onsufficient supports on firm ground to avoid damage by excessivebending and each pile shall be marked indelibly to show itsidentification, length and date of casting, and, in the case ofprestressed concrete piles, shall be marked with the prestressingforce applied.

In its marshalled form it would read—

Piles shall comply with the general requirements for concreteand

they shall also:


(a) be supported, handled and pitched, only as described in theContract;

(b) when stored, be placed on sufficient supports on firm ground toavoid damage by excessive bending;

(c) be marked indelibly to show the identification number, length anddate of casting on each pile;

(d) be marked with the prestressing force applied to each pre-stressedpile.

In its simplest form, a marshalled sentence consists of introductorywords followed by two or more elements. In more complex forms, someor all of the elements may be followed by short connecting words andby resuming words after the marshalled elements. Certain of theelements may also be followed by secondary elements. The followingcomplex marshalled sentence is annotated to illustrate therelationships between all the constituent parts—

Primary elements are numbered (a), (b), (c), etc. and are notseparately annotated.


This example illustrates the principles which should be observedwhen marshalling sentences. These are:—

1. The introductory words should be a phrase of substance which iscommon to all the following elements, up to any resuming words.

2. The introductory words should end in a colon. This aspect isdiscussed below under the heading of “Punctuating”.

3. Each element should commence on a new line, should be indentedand should be identified by a number or letter. An element shouldnot commence with a capital letter (unless the first word is aproper noun) and should end in a semicolon.

4. Each element should be capable of being read continuously withthe introductory words. An example is element (c) which can beread with the introductory words, as— “…setting out all the factsand stating that such material is readily procurable…”.Where there are intermediate resuming words then the elementsfollowing them should be capable of being read continuously withthose resuming words rather than with the introductory words.

5. Where there are secondary elements, the initial words of theprimary element should be treated as introductory words to thesecondary elements and should end in a colon. Secondaryelements should be further indented, should be identified by alettering or a numbering system differing from the lettering ornumbering system of the primary elements and should end in asemicolon.

6. Resuming words should be capable of being read as a continuationof the introductory words or of the previous resuming words. Inthe illustration the intermediate resuming words had clearly to beread with the introductory words as follows—

If, in connection with the material dimensioned…, theContractor gives written notice…stating that…, then theEngineer, if he is satisfied that the Contractor….

Intermediate resuming words should end with a colon; finalresuming words should end with a full stop. If there are no finalresuming words, then the last element should end with a full stopinstead of a semicolon.

Although there are differences between draftsmen in the use of thecolon in marshalling, all the other principles are universally adoptedby all draftsmen and should be strictly adhered to.


3.6Listing

In engineering documents, particularly in specifications, it is oftennecessary to provide lists of various items or of drawings. These arenot to be confused with marshalled sentences, although from casualinspection they appear to be similar; thus the list of principles formarshalling (set out above) has been written as ‘listing’ rather than‘marshalling’. The dividing line can sometimes be fine, in the case of amarshalled sentence which includes what appear to be a list ofprovisions which the Contractor or the Engineer has to make. Thelists referred to here most commonly comprise physical items orobjects, such as furniture or equipment or buildings or drawings, as inthe following examples—

The following furniture and general equipment shall be providedfor the offices and laboratories:—

3 No. typists’ desks and adjustable type swivel typists chairs.27 No. double pedestal desks and upholstered swivel type

chairs.24 No. lockable steel cupboards with full width shelving.1 No. set of transparent plastic railway curves2 No. steel straight edges.

A more complex list, taken from a specification—The following items of laboratory equipment shall be provided and

installed within the laboratory :—

1. Sieve Shaker and Sieves (sieves to B.S. 410 with lids and receivers)(a) Sieve shaker to take 6 No.sieves 1 No(b) 300 mm dia. sieves

(i) 75, 63, 50, 37.5, 28, 20, 14, 10, 6.1, 6.3,and 5.0 mm (perforated plate) 2 sets(ii) 2.36 and 1.18mm (woven mesh) 2 sets(iii) 600, 425, 300, 212, 150 and 53 micron(woven mesh) 2 sets(iv) 75 micron (woven mesh reinforced) 6 No

2. Riffle Boxes to BS 812(a) 50 mm nominal slot width 2 No(b) 375 mm nominal slot width 1 No

These examples illustrate the principles which should be observedwhen listing. They are:—


(1) The introductory words do not have to be read with each item;they stand on their own.

(2) The introductory words end in :—(3) Each item is to be indented and may be numbered; numbering is

not essential.(4) Where there are sub-items they should be further indented and

preferably numbered or lettered within each item.(5) Each item should commence with a capital letter and end in a full

stop.

3.7Punctuating and Numbering for Marshalling and

Listing

There does not appear to be any universal practice for punctuatingthe end of the introductory words in marshalled sentences. Robinson(in The Principles of Drafting) recommends that a dash be used at theconclusion of introductory words; this is the most common usage inlegislation, although even in such documents the colon or colon dash isoccasionally used. Marshalling is extensively used in standard formsof Conditions of Contract for engineering works. Examination of thevarious national and international standard forms for civilengineering, for mechanical and electrical engineering and forbuilding shows that all three alternatives (i.e. colon or dash or colondash) are in use, sometimes all three in different parts of the samedocument. The recommendation given above that a colon be used atthe conclusion of introductory words is based partly on the fact thatmost engineering documents today (other than standard forms) arereproduced from typescript prepared on typewriters or on wordprocessors. These machines can type hyphens (one space in length)but not dashes (two or three spaces in length), which is anunsatisfactory substitution when used at the end of a line, although ithas a satisfactory appearance when used with a colon. As it isnecessary to distinguish between marshalling and listing by using thecolon dash with the introductory words to a list, the colon should beused with the introductory words when marshalling sentences.

Occasionally a draftsman uses the comma in place of the semicolonat the end of an element in a marshalled sentence. This practice issufficiently rare for it to be ignored; the semicolon should always beused to conclude each element.

In marshalled sentences, each primary element is always identifiedby a lower case letter, usually in brackets; secondary elements areidentified by lower case roman figures, also in brackets. In the case oflists, there appears to be a wide variation in practice; in some cases


items are numbered with Arabic numerals or occasionally with Romannumerals, in other cases there is no separate identification (other thanindenting and starting a new line for each item), while in yet othercases lower or upper case letters are used, particularly where thereare sub-items in the list. For uniformity, it is suggested that each itemshould have an Arabic number, sub-items being distinguished bylower case letters and sub-sub-items by small Roman numerals.Examples of all the foregoing systems of numbering or lettering foridentification are used in the illustrations and examples of marshallingand listing given above.

Marshalling and listing, as drafting devices, should not be confusedwith the sub-division of sub-clauses into sub-sub-clauses or sub-sub-paragraphs. In this case the sub-sub-clauses or sub-sub-paragraphsare not introduced by introductory words, as is the case inmarshalling or listing, and each stands on its own within the sub-clause in the same way as each sub-clause stands on its own within themain clause.

3.8Annexures, Schedules, and Appendices

It is sometimes necessary to include, within a particular clause in adocument, a list of items or a description or some other requirement ofconsiderable length which, if inserted into what would otherwise be arelatively short clause, would obscure the meaning or intention of thatclause. The solution is to remove the lengthy description and toinclude it in an annexure to the clause, which can be placed at the endof the section of the document concerned or at the end of thedocument. This is particularly useful in standard documents, wheresuch descriptions may apply only to particular contracts and whichare not, therefore, able to be included within the standard. Suchannexures are often referred to as Schedules and are very common instatutes and other legislative documents. However, an annexure to aclause is exclusive to that clause, whereas a Schedule may beindependent but referred to in a number of different clauses. Thenomenclature is not very important. A good example of the use ofAnnexures or Schedules occurs in the Roads and Bridges Specification,which provided that—

“The Contractor shall provide, maintain and, except those listedin accordance with sub-clause 5 below, remove on completion ofthe Works the offices and testing laboratories for use of theEngineer, including their contents, as described in the Scheduleto this Clause.”


In any contract in which this standard form of Specification wasincluded, the draftsman had to include a Schedule setting out therequirements for the Engineer’s office.

Where the document requires one party to complete a form at somestage in the Contract, then the “form” can become an annexure to aclause which provides for the completion of that form.

Occasionally it is necessary to provide information to accompany adocument, which, although it does not form part of the subject matterof the document, is most conveniently attached to it. An example ofthis is Clause 14(5) of the ICE Conditions which requires theEngineer to provide the Contractor with relevant design criteria forthe Permanent Works as may be necessary to enable the Contractor todesign the Temporary Works. If this information is to be given at thetender stage then it is most conveniently provided in the form of anAppendix to the Specification; it cannot conveniently be appended tothe ICE Conditions (which are usually only incorporated in thecontract by reference) and it may not form part of the contents of theSpecification.

As an example, a large contract had four appendices as follow:—

Appendix 1— Note of principal matters for liaison between theEmployer and the Statutory undertaker

Appendix 2— Design assumptionsAppendix 3— Programme ScheduleAppendix 4— List of approved manufacturers of protective

coating systems.

3.9Definitions—Types and Usage

The use of definitions is another device adopted in drafting to achieveclarity and to reduce ambiguity. Their skilful use assists precision ofdescription, helps in avoiding changes of meaning when using the samewords and can result in a significant reduction in the length of adocument as well as improving readability.

The simplest form of definition is of the name of one of the parties toa contract, such as the Employer or the Contractor. This type ofdefinition has the double advantage of ensuring the avoidance oftypographical errors in repeating the name and of shortening thedrafting by avoiding repetition of lengthy names. It can also be used toavoid lengthy repetition of other names in the text, either by use of a“nickname” or of a descriptive word or phrase as, for example,“Ministry of Agriculture, Fisheries and Food (referred to as MAFF)” or“Imperial Chemicals Industries Limited (referred to as the Paint


Manufacturer)”. A variation of this type of definition occurs in thefollowing statement, used in a specification—

References to clauses of the Civil Engineering Specification forthe Water Industry are prefixed WI.

Where the meaning of a word is not clearly established in thelanguage habits of any section of the readers of the document, adictionary type definition (known as a lexical definition) is required.The meaning of the term “sketch plate”, although known to steelfabricators, does not commonly form part of the vocabulary ofstructural designers or of engineers concerned mainly with erection ofsteelwork. A lexical definition is, therefore, required as follows—

“sketch plate” means a plate whose shape cannot adequately bedescribed in words and which requires a sketch to define thatshape.

Often the lexical meaning or meanings of a word or phrase are wellknown, but the extent of their application may be interpreted indifferent ways. In this case, a definition of the extent of application ofthe term is required, such as—

‘“Constructional Plant” means all appliances or things ofwhatsoever nature required in or about construction completionand maintenance of the Works but does not include materials orother things intended to form or forming part of the PermanentWorks.’ (from ICE Conditions)

Another form of this type of definition does not seek to define the term,but merely to ensure that certain aspects are covered. The definitionuses the word “includes” rather than “means”. It is most useful forensuring that the expressions used in the document arecomprehensive and enables this to done without undue repetition, asthe following examples (from the Law of Property Act 1925 and fromGC/Works/1 respectively) illustrate—

“The singular includes the plural and vice versa”

and a more complicated provision

“The expression ‘loss of property’ includes damage to propertyloss of profit and loss of use.”


The Law of Property Act 1925 is a source of many legal definitionswhich, because they have the force of law, are applicable withoutbeing repeated in a document. Most of these definitions are notappropriate to engineering documents; they are intended for buyingand selling property. However, Section 61 (quoted in Chapter 2Part 2.13) provides definitions of “Month”, “Person”, singular andplural, and masculine and feminine. Its provisions are, of course, onlyapplicable in the UK, although many Commonwealth countries have asimilar Act which incorporates these definitions.

In some cases it is convenient to split a definition between two ofthe documents forming a contract, the general part of the definitionbeing given in a standard document while the detailed aspects aredefined in a document specific to the work concerned. The mostcommon examples are the definitions of the Works and of the Site.The general requirements are defined in standard Conditions ofContract; specific requirements applicable to the particular contractare most conveniently provided in the Specification under the headingof “Description and Extent of Works” and “Location and Extent ofSite” respectively. These specification clauses should be treated asadditional paragraphs to the Conditions of Contract definitions andmay commence with the words “The Works comprise…” or “The Sitecomprises…” The definitions of the Site are, of course, only applicableto construction contracts or to plant contracts with erection; they willnot apply to contracts for the supply of mechanical and electricalplant. The subject is dealt with in detail in Chapter 5 Parts 5.7.1 and5.7.2.

When framing definitions the draftsman should avoid repeating thewords of the dictionary; the definition in the document should belimited to supplementing or adjusting the dictionary meaning in orderto provide for the requirements of the document being drafted.

3.10Interpretation Clauses

Where there are a number of definitions applicable throughout thedocument, it is usual to group them into an interpretation clause. Asmentioned in Part 3.3, it is customary to put the general definitions inan interpretation clause at the beginning of the document; definitionsapplicable only to one section of the document are, however, usuallyretained within that section.

In order to guard against the risk that a defined word in the text ofthe document may be inadvertently, but obviously, used in a senseother than the one defined, it is usual to commence an interpretationclause with words such as—


“The following expressions shall, unless the context otherwiserequires, have the meanings respectively assigned to them:— ”

A list of definitions follows these opening words, the rules forpunctuation being as generally set out in Parts 3.6 and 3.7 above.However, the expression which is being defined is, in each case, put ininverted commas and the words forming the expression commencewith capital letters; this device clearly identifies the expression, thecapital letters (but not the inverted commas) being retainedthroughout the document whenever the defined expression is usedwith its defined meaning. If the same expression is used without thedefined meaning, then capital letters are not used. An example of thisis the expression “the Contractor” which is defined to mean theparticular contractor to whom the contract has been awarded. Whensome other contractor is referred to then the lower case is used, as inthe statement—

The Contractor shall liaise with the contractor for contract No 1and shall agree with him the dates on which it is expected thatthe permanent drainage will be connected and shall makearrangements for discharge of drainage to any temporary drainsor pumping sumps operated by the contractor for contract No 1.

Definitions which form part of a section or a clause in a document arenot usually preceded by the qualifying words used in interpretationclauses; it is relatively easy to check a section or clause to ensure thatno expressions used in the text are inconsistent with the definitions.

It is often convenient to form a definition by putting the definedexpression in brackets after its description or meaning, as in thefollowing example—

The rates and prices take account of the levels and incidence atthe date for the return of tenders (referred to as “the relevantdate”) of the taxes levies and contributions which are by lawpayable…

The bracketed definition is provided on the first occasion on which theexpression is used and it is usual to omit the words “referred to”(although they are sometimes used), these words having becomeimplicit as a result of the continued usage of this style of definition.This particularly applies to definitions of names, e.g.—

Unplasticised polyvinyl chloride (UPVC) pipes complying with…


thus avoiding extending the interpretation clauses and reducing thelength of the document.

3.11Definitions to be Avoided

In theory, words can be given any meaning that one wishes; it is quitepossible to define white as meaning black. As Humpty Dumpty said inAlice in Wonderland “words mean what I say they mean”.Although unnatural meanings can be tempting, particularly when oneis attempting to hurriedly amend a document, they form a barrier tocommunication. Notwithstanding the definition, the reader of the textis likely to interpret the word in accordance with its ordinary meaning,giving rise to misunderstandings and disputes. Moreover, thedraftsman is liable to forget the unnatural definition at some point inthe drafting of a lengthy document, with the resulting risk ofambiguity. Dickerson refers to the ultimate in Humpty Dumptydefinitions which occurred in Bills which came before the U.S.Congress and which provided that, for their purpose the term“September 16th 1940” meant “June 27th, 1950”; one can imagine themental gymnastics necessary to understand such legislation. He alsodraws attention to an English statute which provided that—

‘Whenever the words “cows” occurs in this Act it shall beconstrued to include horses, mules, asses, sheep and goats’.

In an engineering context, one can foresee considerable difficulty withthe definition—

Engineer means ............., chartered accountant of Holborn,London.

Language habits invest words with meaning which cannot beshrugged off; defining a chartered accountant as an engineer does notgive any confidence in his ability to settle engineering disputes in acontract. The problem is best summed up by Robinson who says (inhis book “Drafting”)—

“Because it is not possible to cancel the ingrained emotion of aword by an announcement, words should be defined by referenceto a meaning that they can bear”.

Occasionally it becomes necessary to give a word an unnaturalmeaning; the effect can be minimised by the use of the “as if “technique.


An example relates to the term “water/cement ratio” which is used inspecifications for concrete. In modern practice a mixture of cementand pulverised fuel ash (PFA) may be used in place of pure cement forpart of the concrete for a project. It is tempting to say—

“PFA means cement where the context requires.”

It is far better to give a fuller definition and say—

‘In the expression “water/cement ratio”, the weight of anyspecified combination of cement and PFA shall be considered asif it were the weight of cement.’

An alternative is to use two definitions as follows—

“Cementitious content” of concrete shall mean either the cementcontent or the content of cement and PFA combined. In theexpression “water/cement ratio” the words cementitious contentshall be substituted for cement.

When framing definitions it is necessary to avoid including substantiveprovisions. Dickerson gives an example, from draft zoningregulations, of the problems that can arise in this connection. Theproposed draft definition was—

‘“parking space” means a space, no smaller than 9 ft by 20 ft, forthe offstreet parking of one motor vehicle.’

Unfortunately, this allows a householder to locate a 9 ft by 19 ftparking bay in front of his house, contrary to the intention of theregulations. The problem was overcome by omitting the substantiveprovision from the definition thus—

The term “parking space” means a space for the offstreet parkingof one motor vehicle. No parking space may be less than 9 ft by20 ft.’

Similar problems could occur in a specification definition which said—

Cementitious content means a mixture of 70% cement and 30%PFA.


Confusion would arise if, at any time, it became necessary to specifysome other mix proportion, i.e. the proportions (the substantiveprovision) should be omitted from the definition.

In a definition, the word “means” limits the meaning of the definedterm to that given in the definition; the word “includes” widens themeaning to include matters which might not formerly be included.The two words are, therefore, incompatible and the term “means andincludes” cannot be used, i.e. we cannot, for example say—

“Rock” means and includes hard material on its natural bed andboulders exceeding 0.2 cubic metres in volume.

It is equally inappropriate to say—

“Rock” means hard material on its natural bed and includesboulders exceeding 0.2 cubic metres in volume.

This problem can be solved by avoiding the word “includes” andadding a separate provision, as follows—

“Rock” means hard material on its natural bed. Hard material inboulders exceeding 0.2 cubic metres in volume shall be deemed tofall within the definition of rock.

An alternative method is illustrated by the changes which were madein the Roads and Bridges Specification. In the 1969 edition there is adefinition—

‘“Unsuitable material” shall mean other than suitable materialand shall include: ........’

this is followed by a list of materials which are included. However, inthe 1976 edition this was revised to state—

‘“Unsuitable material” shall mean other than suitable materialand shall comprise: .....’

this is followed by a list of materials (the same list as the 1969edition), i.e. the word “comprise” limits the meaning to those itemslisted and thus is compatible with the word “means” and does notextend beyond it.


3.12One-off Definitions

It is obviously inappropriate to include in any interpretation clause adefinition of a word or phrase which is used only once or twice in thetext of the document. The reader may be unaware that the term hasbeen defined and it will not improve readability if he has to search fordefinitions of terms which are used only occasionally. It is better togive a full description in the place where the term is used. In somecases, the description of a term may be lengthy and complicated andmay interrupt the flow of the language and obscure the meaning ofthe provision in which it occurs. In such a case the term should bedefined immediately before or after the paragraph in which it is used.A good example of this occurs in the IEE Conditions clause forvariation in labour taxes, which says—

‘If, as a result of the coming into effect after the date of the tenderof any change in the level or any incidence of any labour-taxmatter, including the imposition of any new such matter, or theabolition of any such matter previously existing the cost to theContractor of performing his operations under the Contract shallbe increased or reduced, the amount of such increase or reductionshall be added to or deducted from the Contract price as the casemay be.’

‘In this sub-clause “labour-tax matter” means any tax levy orcontribution (including National Insurance contributions butexcluding tax and any levy payable under the IndustrialTraining Act, 1964) which is by law payable by the Contractor inrespect of labour and any premiums and refunds which are bylaw payable to the Contractor in respect of labour.’

The use of such a one-off definition is common in legislation and canbe very valuable in engineering documentation.

3.13Mathematical Formulae, Tables, and Forms

Mathematical formulae are not very common in contract documents,as they are mainly concerned with quantitative relationships,whereas the documents deal with responsibilities and duties, withmethods of construction and with the duties required of mechanicaland electrical plant. In Conditions of Contract, formulae generallyappear only in connection with payment adjustments, such as theBEAMA Formula for adjusting for inflation in the UK in mechanical


and electrical plant supply contracts, and in the Baxter and Osborneformulae, for making similar adjustments in civil engineering and inbuilding work respectively. Formulae have also been used fordetermining payments to be made for engine overhauls and also forpayments to be made in respect of loss of productivity due to industrialdisputes. In specifications, formulae are usually employed only inconnection with laboratory testing and quality control; other mattersconcerning quantitative relationships are usually dealt with by meansof tables.

When defining the symbols in a formula it is usual to use the sign =instead of the word “means”; the definition should otherwise betreated similarly to all other definitions and particular care should betaken to avoid including substantive provisions in those definitions.Such substantive provisions should be incorporated in the formula orin limitations applied to the formula.

Tables are very common in specifications and similar documents;they have the advantage that the figures in them do not have to berelated by continuous mathematical functions and that the highestand lowest values in the tables automatically limit the extent ofapplicability of the table. Because of the wide variety of data andrelationships which may be assembled in tables, there are very fewgeneral rules applicable to them. However, it is important that everytable be numbered and titled (preferably in a manner which is easilyrelated to paragraph numbers in the text) and that references are tothe table number and not by phrases such as “the accompanyingtable”. The text of a document often changes in the course of draftingand table references may become incomprehensible unless clearlylinked to the text by a number or a letter. Where there are a numberof columns in a table, it is desirable to number the columns to enabletextual references to be clear and unambiguous. Column and linedescription must be carefully drafted to ensure clarity, particularly inrelation to such phrases as “not less than” or “not greater than”, andexplanatory notes are required where the possibility of interpretationarises. Where the column headings are very lengthy it may sometimesbe necessary to set them out separately (either above or below thetable) in a note, with numbers related to the column numbers. This ispreferable to condensing the headings to an extent which may giverise to difficulty in understanding or to ambiguity.

It is sometimes necessary to provide that some information (such asa certificate or a declaration) shall be set out in a particular way orshall involve certain specified wording. This is done by annexing astandard form to the document. Such a form should preferably be on aseparate sheet and should have a heading describing its purpose; ifthere are several such forms it is worthwhile giving each form a number


for cross-referencing in the text, in a similar manner to table numbers.Blanks left for the insertion of names or descriptions or otherinformation should have dotted lines on which the information may bewritten and, for clarity, they are often provided with a description, inbrackets, of the information which is to be inserted in the blank space.

3.14Document Layout

Documents can and have been written as one continuous text, withoutpunctuation and with only the occasional full stop, if any. This oldstyle of legal drafting is practically unreadable. Apart frompunctuation, one of the most important devices for improvingreadability is good layout of the typescript, which provides headings,numbering and spacing to break up the solid mass of the documenttext.

Breaking the document text into Sections (and in some casesgrouping the Sections into Parts) provides the equivalent of chapterheadings. Providing numbering and sub-headings to each clause andthe further numbering of sub-clauses divides the typescript andreduces that weariness in the reader which results from reading acontinuous text. Adequate spacing between clauses and between sub-clauses also helps.

Lawyers and some engineer draftsmen favour the use of marginalnotes for clauses, rather than sub-headings; they are also used insome documents to describe sub-clauses as well as clauses (as in theICE Conditions). Most standard Conditions of Contract are printedwith marginal notes, but specifications are more commonly printedwith subheadings.

Marginal notes have the advantage that they can be written afterthe document has been drafted, so enabling the draftsman to selectthe most apposite clause description. They are less effective inproviding a subdivision of the typescript, but this disadvantage can beovercome by variation in the size and weight of the typeface used forthe marginal notes. There are a wide variety of typefaces available forprinting standard documents, but this variety is not available withthe methods usually adopted for printing non-standard documentssuch as specifications. For this reason, sub-headings are morecommonly used than marginal notes for this type of document. Thereare, of course, some hybrids combining headings with marginal notes;an interesting example of this is the FIDIC M & E Conditions whichhas both marginal sub-headings overlapping the typescript andmarginal notes (this has changed in the 1987 edition). An example ofthe use of sub-headings in a printed document is the Highway Works


Specification; it is unusual in being printed in half page widthcolumns, rather than full page width.

Clauses in lawyers documents are generally numberedconsecutively from the commencement of the document, sub-clausesbeing numbered consecutively within each clause and this system isusually adopted in standard Conditions of Contract, whether they aresub-divided into sections or not. The system in short documents (suchas Instructions for Tendering) is usually limited to consecutivenumbering of paragraphs, but in longer documents (such asSpecifications) which are divided into sections, one of three alternativesystems of numbering is usually adopted:—

(a) Consecutive numbering commencing at the beginning andcon tinuing for each clause, notwithstanding the division intosections;

(b) giving each section a hundreds digit and numbering the clausesconsecutively in each Section from that digit, e.g.in Section 300—Earthworks, the first clause is numbered 301;

(c) sections numbered consecutively and the clauses numbered by thedecimal system within each section, sub-clauses and sub-sub-clauses being numbered by further decimal additions within theclause numbers, e.g. in ‘Section 3.0— Earthworks’ the third sub-clause of the first clause would be numbered 3.1.3

Method (b) has the advantage that additional clauses can be addedwithin a section without disturbing the numbering system. It isparticularly useful when amending a standard specification oradapting an existing specification for a new project.

Standard documents such as Conditions of Contract have usuallybeen printed by letterpress, i.e. set up by compositors, with a verywide variety of typefaces. The number of copies produced often runsinto many thousands or tens of thousands, whereas the number ofcopies required for an individual contract may number perhaps fifty.Even with this small number it was previously economical to useletterpress printing, but with the advent of small offset litho machinesusing paper plates, letterpress printing for individual contracts hasbecome unusual. Today most of the documents for individual contractsare reproduced from typewritten originals, by offset litho. The modernoffice typewriter, either electric or electronic, often hasinterchangeable golf balls or daisy wheels which allow some limitedvariations in typeface. It is not usually feasible to combine bolderheadings with ordinary type on the same machine when typing adocument and this limits freedom of layout as compared with thevariety offered by letterpress. However, many documents today are


being produced on word processors, which do allow a variety oftypefaces to be used in the same document, although this variety israrely as great as that available with letterpress. An example of thisis the use in letterpress printing of a different typeface (often smallerand heavier) in marginal notes. This option is rarely satisfactorilyavailable on word processors, although the situation is changing withthe advent of desktop publishing programs.

Another matter affecting layout is the decision whether to print onone or both sides of each sheet. This particularly affects the use ofmarginal notes, which usually require the margins to vary onalternate pages, the note margin being wider on the right whendouble sided printing is used. Although double sided printing can beundertaken on small litho machines, it is usually more convenient toprint one side only and this is the commonest format when thismethod of printing is adopted. In many documents, such as Bills ofQuantities, there is an advantage in single side printing as it providesa blank page on the left hand side on which notes and comparisonscan be made when considering tenders or during the administration ofa contract.

When the final draft of the document has been typed, the typist orword processing operator should number all the pages and prepare acontents list of clauses. Although many legal documents do not havecontents lists, in contract documents these are essential to facilitatereference during administration of the contract.

The layout adopted must obviously be related to the means used forreproduction. Some large firms of engineers have adopted house stylesfor particular kinds of document, but these are not always adhered to,the layout style being affected by the needs of particular projects,including clients’ wishes and the customs in the various parts of theworld where projects are carried out.

Where typesetting is carried out by a commercial printer (with alarge variety of typefaces available), he will be able to advise on layoutand typography. Where reproduction is from typed or word processedoriginals and where there is no fully developed house style, thedraftsman should provide for a simple layout which will enhancereadability and clarity. Such a layout could be based upon thefollowing outline scheme:—

(a) Section headings centralised and in bold capitals.(b) Clause numbers and headings commencing at left hand margin in

bold type with words commencing in capitals.(c) Both left and right hand margins 25 mm wide for A4 paper and, if

possible, the right hand margin justified, i.e. the ends of each line


being aligned at the right hand margin (this can only be done onword processors or on certain electronic typewriters).

(d) Line spacing to be:

(i) generally one and a half space;(ii) between sub-clauses and between clause heading and first sub-

clause—3 spaces;(iii) between end of clause and heading of next clause—4 spaces.

(e) Printing one side.

When bold type face is not available for headings or its use is undulyonerous (such as changing a golf ball solely for typing a heading), thealternative is underlining of ordinary type face.

Binding of document volumes often depends upon availability ofbinding resources. The simplest binding available today is the plasticcomb or spiral binding but this is not sufficiently durable for hard use;it is, however, suitable for tendering purposes. Copies of documentswhich are required for contract administration or for use at siteshould have a more durable binding such as stapling combined withheavy self adhesive plastic backed cover tapes. Where there are anumber of contracts within a project it is helpful if the colours ofcovers and backing strips are varied with each contract, so that thedocument volumes for a particular contract are easily identified in thebookshelf.

3.15Incorporation of Standard and Existing Documents

In practice, a large proportion of engineering documents consist eitherof standard documents amended to suit the contract or previouscontract documents cannibalised and added to or amended. In order toavoid incongruities and ambiguities, the drafting and the punctuationstyle of the original may have to be adopted.

Conditions of Contract are usually standard printed documentswhich are incorporated by reference, subject to amendents, i.e. theprinted standard form is not bound into the documents but is referredto in a paragraph which makes it subject to amendments which followthe reference. A typical reference paragraph (referring to the FIDICCivils Conditions) would be—

The Conditions of Contract shall be the PART 1— GeneralConditions incorporated in the CONDITIONS OF CONTRACT


(INTERNATIONAL) FOR WORKS OF CIVIL ENGINEERINGCONSTRUCTION (4th Edition: September 1987) published bythe Fédération Internationale des Ingénieurs-Conseils (FIDIC)as modified and added to by the Part IIz— Conditions ofParticular Application set out herein.

Although the printed Conditions generally have marginal notes, thisdoes not apply to the amendments, which are numbered inaccordance with the Conditions being amended and have sub-headings corresponding to the main marginal headings. AdditionalConditions are added after the amendments and are numbered afterthe last clause number of the printed Conditions (most printedConditions make provision for this).

Very occasionally, the printed Conditions are themselves amendedby the cut and paste technique and copied into the documents, butthis method is more commonly applied to produce working documentsfor administration purposes. A typical example of a ‘cut and paste’clause is shown in fig.1 where the typewritten additions are easilydistinguished from the main printed wording.

Standard printed Conditions are negotiated between professionalorganisations and contractors in each branch of the engineering and

Figure 1


construction industry. Staff dealing with tenders and withadministration become familiar with the standard conditions and findit easier to read the amendments separately, rather than search forthem in a reprinted edition of the standard form. For this reason, it ispreferable to write out the amendments in the usual manner ratherthan to amend and reprint the standard document.

Apart from Conditions of Contract, the other main type of printedstandard form is limited to the civil engineering and buildingindustries and comprises the Method of Measurement, upon which theBills of Quantities are based. Amendments to these documents areusually incorporated in the Preamble to the Bills; the subject is dealtwith in publications concerning preparation of Bills of Quantities anddoes not require repetition here.

Some industries have standard printed forms of specifications. Oneof the best examples of this in the UK is the Highway WorksSpecification of the Department of Transport; this specification isusually incorporated by reference, using a standard clause publishedby the Department.

Most specifications are prepared by using clauses for generalrequirements and materials and workmanship which are taken from aprevious document and modified to suit; it may almost be said thatthe art of specification writing is mainly the skilful practice ofplagiarism. However, the art of drafting this type of document lies inensuring that all the clauses cover the specific requirements of thework in hand, that the necessary additional clauses dealing with thespecial requirement of the particular contract are included, and thatthe requirements of the Works are comprehensively covered. Skill indrafting, experience in checking and the importance of a logicalarrangement cannot be over emphasised; the subject is more fullydealt with in Chapter 5.


CHAPTER 4Conditions of Contract

4.1Purpose of Conditions of Contract

The document referred to in engineering contracts as “Conditions ofContract” is intended to regulate the relationships between theparties to the contract; it defines the parties and their responsibilitiesto each other as well as their responsibilities for various aspects of thecontract. The liabilities of each of the parties and the respective risksto be taken by them are usually implicit in the defined responsibilities,but because of the complexity of the usual form of Conditions ofContract, it is preferable for those liabilities to be explicitly defined.

The relationships defined in the Conditions are subject to theprovisions of contract law and the documents must be drafted inaccordance with those provisions. Engineers concerned with thedrafting of Conditions, or amendments to them, should have a goodknowledge of contract law; when in doubt they should take legaladvice on the subject.

The legal aspects relating to some of the requirements of thedocuments (such as the law related to bankruptcy and the regulationsgoverning VAT) are beyond the expertise of most engineers andrequire legal advice and drafting. When a new standard form ofConditions is drafted, it is common for the draft to be vetted by alawyer specialising in construction contracts; similar vetting issometimes required when substantial amendments are made toexisting forms. It is essential that lawyers who check engineeringcontracts should have specialist experience in the subject; a generallawyer without this specialist experience is unlikely to be able toprovide sound advice on the subject.

Because of the nature of engineering contracts, particularlythose involving a substantial amount of site work, there is a need foradministration, supervision and inspection throughout the period ofthe contract. In the British system, which is generally used throughout

the Commonwealth (and in a modified form in North America), andelsewhere in the form of the FIDIC Conditions, a professionalengineer or consultant is named in the interpretation clause and isusually entirely responsible for administration of the contract and fordeciding disputed points in a manner which is fair to all the parties tothe contract. The powers and responsibilities of the Engineer are afundamental part of the contract and their proper definition anddescription are important items in the drafting of the contractdocuments.

Some oil companies working in the North Sea have substituted “theCompany Representative” for “the Engineer”, in order to providedirect control rather than working through an independent engineer.If the work is to proceed smoothly and disputes are to be minimized,the Company Representative needs to carry out his duties in a similarmanner to the Engineer. In many contracts for public authorities, theEngineer is a member of the Authority’s staff. Although the Engineeremployed by a public authority might or might not have greaterindependence than the Company Representative, the difference islikely to be one of degree rather than fundamental; there should belittle difficulty in adjusting standard Conditions to suit the actualduties and responsibilities.

Other contract systems do not necessarily provide for the roleplayed by the Engineer in the British system. In the Swedish form ofcontract the Engineer’s function is limited to inspection to ensurecompliance with the technical requirements of the contract; theEngineer may undertake day to day supervision on behalf of theEmployer but, in this respect, does not have the standing of theBritish Engineer. General administration of the contract isundertaken by the Employer who will settle disputed matters bynegotiation with the Contractor. In many countries on the continentof Europe, contract law is related to or based upon the Code Napoleon;Conditions of Contract are either very limited or non-existent, reliancebeing placed upon the 10 year legal responsibilities of the Contractor.Elsewhere, contract forms may vary from a simple verbal agreement(as referred in the quotation from a Japanese contractor at thebeginning of Chapter 3) to systems based largely on the BritishConditions, particularly since the advent of the FIDIC Conditions.Although many aspects of the British system of engineering contractswhich are incorporated in the FIDIC Conditions can be deleted orsubstantially modified by the “Conditions of Particular Application”which are added to the general document, the basic principles aregenerally accepted by the users of these contract forms.

Contracts for the construction of buildings may be considered in thesame category as civil engineering contracts. Many buildings are

86 CONDITIONS OF CONTRACT

constructed under the ICE Conditions; the government contract formGC/Works/1 covers both building and civil engineering works.Building contracts in the British system introduce two new charactersto the draftsman, namely the Architect and the Quantity Surveyor,who jointly perform the functions of the Engineer in an engineeringcontract. To assist in supervision and settlement of disputes, otherprofessionals are sometimes introduced into engineering contracts. Ina contract involving a review clause, professional auditors wereincluded in the Conditions of Contract, with the duty of preparing auditreports of the Contractor’s financial operations.

Most contracts provide for arbitration in case of disputes which arenot resolved under the general contract provisions. This is intended toavoid expensive and protracted litigation, but whether it succeeds inreducing the expense or time depends upon the terms laid down forarbitration and the method by which it is conducted.

When drafting Conditions or amendments to them, it should beborne in mind that the Contractor plays a dynamic role in thecontract, while the Employer’s role is passive, i.e. the Contractorinitiates actions and claims while the Employer deals with mattersafter the event. The balance between the parties is maintained byproviding the Employer and the Engineer with powers under thecontract which will enable them to act effectively against anydetrimental actions by the Contractor.

4.2Fundamental Logic

Consideration of the purpose of Conditions of Contract in conjunctionwith the requirements of the law of contract enables a logicalframework to be devised for the drafting them. Fundamentally, thedocument can be divided into four parts as follows:—

Definition of parties to the contractDescription of contractDuties of ContractorPayment by Employer

These divisions have been placed in serial order, i.e. they are in theorder in which the various actions are presumed to take place: thus,the description of the works follows the agreement of the parties toform a contract, the Contractor’s duties (or the actions to be taken byhim) follows the description of the contract (which says what has to bedone) and payment follows the Contractor’s action in carrying out hispart of the Contract. Arranging the sections and clauses in serial


order is an important part of the logical framework for drafting thistype of document. Some items do not have any definable serial orderand, in that case, should be grouped together so that the groupconcerned is arranged in serial order in relation to other clauses andgroups of clauses.

The fundamental logical arrangement given above is, of course, toosimple to cover even the basic requirements for drafting Conditionsfor engineering. Without entering into any consideration of thecontent of the contract, the items in the basic logical arrangementneed to be expanded to include the basic provisions for therelationships between the parties. The expanded basic fundamentallogic is as follows:—

A- Definition of the parties to the contractB- Duties of the Engineer and his staffC- Description of WorksD- Duties and responsibilities of the ContractorE- Duties and powers of the EmployerF- Payments by the EmployerG- Settlement of disputes

Because the duties and responsibilities of the Contractor and of theEmployer interact, there will be overlapping between items D and E.Moreover, many of the provisions within the various items may haveno obvious serial order (particularly within and between items D andE). The order of the corresponding clauses will, therefore, be related tothe serial order of common groups of those clauses.

Because the basic relationships between the parties to engineeringcontracts are unlikely to vary between one contract and another, thefundamental logic outlined above is unlikely to change, although thelogical arrangement of the sections and clauses of the Conditions(within the fundamental logical framework) will vary according to theintentions of the parties and the requirements of the Works.

4.3Logical Order of Sections

Although engineering contracts cover a wide variety of works, thevariation in the forms of the Conditions is relatively small. Thesegenerally fall into one of three categories:—

Construction contractsManufacturing (or fabrication) and erection contractsSupply of manufactured items.


The most complex of these categories is the construction contract,involving (particularly in civil engineering) substantial site workscombined with either materials supply and specialist sub-contractingor (generally in mechanical or electrical engineering) with design,manufacture and materials supply, often with specialist sub-contracting of manufacture. Some of the sections which go to make upconstruction contract Conditions may not be required for less complexcontracts. However, the sectional framework developed forconstruction contracts serves to illustrate the development of draftingframeworks for other engineering contracts.

Although many of the clauses needed to deal with the requirementsof civil engineering contracts will necessarily differ from those neededto meet the requirements of mechanical and electrical constructioncontracts, these clauses merely provide the detail for the generalterms which are common to all construction contracts. A comparisonof standard forms (such as the FIDIC Civil and the FIDIC E & MConditions) confirms this point. A framework of sectional headingscan, therefore, be developed which will be applicable to mostengineering construction contracts and which will provide for themajor sub-divisions of the terms required to be included in Conditionsof Contract.

If the interaction between clauses in different parts of the documentis to be minimised, then the arrangement of the sections must complywith the fundamental logic applicable to the document. For thispurpose it is obviously desirable for each section to deal only withmatters which fall within one item of fundamental logic, but (aspointed out in Part 4.2 above) “the duties and responsibilities of theContractor” overlap with “the duties and powers of the Employer” sothat some sections will deal with matters common to both items D andE. The sections should also, so far as possible, be set out in serialorder or in appropriate relationships where no clear serial orderexists.

The following table gives a list and order of sectional headingssuitable for most construction contracts. It also indicates the items offundamental logic to which the various sectional headings are related.

This list is based upon the British contract system. It is notintended to cover every possible requirement, nor are all the sectionsapplicable to every type of contract. Thus, in many mechanical andelectrical contracts, reference to Prime Cost items is inappropriate,while in international contracts a section will be required to deal withcustoms duties and import licensing.

Two of the sections which commonly appear in standard forms arenot included in this Section list, namely “Assignment and Sub-letting”,


and “Alterations Additions and Omissions”.This is because the logicalframework requires these subjects to be dealt with in other sections.

Although Assignment and Sub-letting is, in legal terms,conveniently grouped under one heading, in the practice ofengineering contracts there are two separate concepts involved. Theintention is that the Contractor who is a party to the contract shall beresponsible for the whole of the work and that this responsibility andthe consequences that flow from it shall not be passed on to any otherorganisation, i.e. it is the intention of the contract that the parties bedefined in a manner which will ensure that the responsibility forcarrying out the work is both legally and factually restricted to theparty named as the Contractor. A clause requiring that “TheContractor shall not sub-let the whole of the Works nor assign thecontract without the permission of the Employer” should logically beincluded with the section defining the parties. On the other hand, sub-letting of parts of the work, particularly to specialist firms, is anormal procedure (subject to certain safeguards) and should requireonly the consent of the Engineer if he is satisfied that the safeguardshave been met; the requirements for safeguards and consent are partof the general obligations of the Contractor and, therefore, fall withinthat section of the Conditions.

The usual section on “Alterations Additions and Omissions” consistsof two parts; the first part is concerned with the power of the Engineerto instruct the Contractor and should be included within logic item B,


while the second part is concerned with valuation and should logicallybe included within item F under the heading of Contract Price.

Similar arguments apply to other matters which appear in someConditions, such as the proper address and manner of serving notices(which logically falls within Interpretation) and tax matters whichmay fall within the section for Contract Price or within Terms ofPayment.

4.4Use of Logical Method

The content of each section, comprising the clauses and sub-clauses,depends upon the type of work to which the Conditions apply and theintentions of the party for whom the document is being drafted; suchmatters as the division of risks between the parties, the responsibilityfor design, and the insurable risks, will considerably affect thedrafting of the document. However, by following the logicalarrangement of Sections (which provides for different functions andresponsibilities to be separated) each of the requirements andintentions can be analysed to determine the logical items involved andcan be drafted accordingly with the minimum of risk of interactionbetween them. Consequently, while making use of parts of manystandard clauses, there should be little difficulty in incorporatingspecial or novel clauses for particular works or particularrequirements of the client. An example of client’s special requirementswould be the Department of Transport’s Lane Rental arrangements,which are intended to minimise construction times and providerealistic bonus and penalty provisions. Provided that the draftsmanadheres to the principle of limiting the content of each clause to therequirements of the fundamental logic, it is a straightforward exerciseto frame appropriate clauses, as follows:

(1) to provide in the Programme section for the Contractor to framehis programme to provide for early completion;

(2) to describe, in the Completion section, which items are to beincluded in completion of the whole (and, where appropriate, inpart completion) and to provide for the determination of theextent of any delays due to causes specifically referred to;

(3) to state, in the section for Contract Price, the payment to be madeby the Employer for the work described under Completion, as wellas any contra-charges to be made against the Contractor inrespect of lane rental or any other payments to be made orcharged in respect of bonus or penalty and any additionalpayments to be made by the Employer for any of the delays due to


specified causes; a clear definition of any items of preliminarieswhich are to form part of payments for delays would also beincluded;

(4) on the basis of the provisions under Completion and underContract Price, the requirements for certification of completionand of delays can easily be incorporated in the section forCertificates;

(5) any special financing requirements can be included under Termsof Payment.

One of the important advantages of this method of separating thevarious requirements into clearly defined sections based upon afundamental logic is that the draftsman can frame the details ofpayment to be made with a clear picture of the requirements ofpreviously drafted clauses and can limit payment to the risks that theEmployer is prepared to meet. The remaining risks will then devolveupon the Contractor who will have a clear picture of the risks forwhich he is pricing in his tender. If a standard form of Conditions iswritten on this basis, it is relatively simple to adjust the payment itemto suit the risks the Employer is prepared to take on the particularcontract. Such a clear definition of the risks to be taken by the partiesshould assist in avoiding many of the claims that have become afeature of present day contracting. Of course, the Employer will haveto pay for all the risks, either indirectly in the price quoted by theContractor (who will include in his rates the costs resulting from therisks he has to bear) or directly in respect of those risks borne by theEmployer through the contract provisions. However, if the Employerprefers a fixed price, even though the resulting final costs may proveto be higher (should the possible risks not eventuate) then clearstatements setting out payments to be made and precluding otherpayments (for possible risks) should avoid dispute. In general,contracting organisations are practised in taking constructional risksand quantifying them, while many private clients are not able orwilling to take such risks, particularly if their interests are mainly inmanufacturing. Local authorities are generally better placed thanprivate clients to deal with construction risks, but they are oftendismayed to find that claims are made by contractors for matterswhich they thought were covered in the Contract.

The national standard forms of Conditions do not have any commonlogical arrangement; some, such as GC/Works/1, do not appear to haveany logical arrangement at all, clauses following one another inapparently random fashion. It should not be thought that a lack oflogical arrangement of the clauses necessarily denotes anunsatisfactory document. GC/Works/1 and its predecessor CCC/Wks/1


have been in use for more than fifty years and have been revised on anumber of occasions so that successive additions have been able toeliminate earlier faults. An engineer who has to draft new or revisedConditions of Contract does not have the advantage of time as ameans of eliminating faults and ambiguities and is expected toproduce a satisfactory finished document as quickly as possible.

The methods given here (developed from experience of draftinglengthy documents) enable the draftsman to develop a logicalframework so that the document can be written in relatively smallsections which fit together with a minimum of risk of interactionbetween the sections as well as an awareness of those inter-relationships which require specially careful treatment to avoidambiguity. Of course, no method can be a substitute for skilfuldrafting; any method can only guide and assist the draftsman toarrange and to communicate the requirements for the work in a clearand unambiguous manner.

4.5Composition of Each Section

The draftsman must be able to recognise the logical sectionappropriate to a particular clause. Reference has already been madeto this aspect of drafting, when attention was drawn to the distinctionto be made in an engineering contract between Assignment and Sub-letting. The following examination of the contents appropriate to eachsection of the Conditions for a construction contract will be ofassistance both in drafting construction contracts and in determiningthe logical framework and contents of other engineering contracts.

4.5.1Definitions and Interpretation

Although this section comes under the heading of ‘logic item A—Definitions of parties to the contract’, it is not limited to thedefinitions of the parties. For practical reasons it is desirable toinclude within the Section the definitions of those words which have aspecial meaning within the contract or which are substitutes forrepeated phrases. The Section, therefore, comprises two parts:—

(a) A clause defining each of the Parties to the contract, together witha clause or clauses concerning matters of substance which affectthe definition.


(b) Clauses concerning the interpretation of the contract, includingdefinitions, interpretive items and administrative matters whichare of an interpretive nature.

For the purpose of defining the Employer, Conditions fall into threecategories:—

(1) Conditions intended to be used nationally or internationally,which are usually incorporated by reference.

(2) Conditions applying to contracts let by a particular organisation;these incorporate the name of that organisation (as the Employer)in the printed document.

(3) Conditions prepared for particular Works and which, therefore,incorporate the name of the Employer concerned.

Where Conditions are usually incorporated by reference, the clausedefining Employer ought to refer to a specific supplementary documentin which the name of the Employer is given. For example, the FIDICConditions state that the Employer is named in the Part II : GC/Wks/1 has the Employer (defined as the Authority) designated in theAbstract of Particulars. In the ICE Conditions space is allowed in thedefinition clause for the name of the Employer to be inserted, but thisis rarely used because the Conditions are almost always incorporatedby reference so that the definition ought to be amended to provide forthe name of the Employer to be included in the Special Conditions(Clause 72 onwards) or in some other named document.

It should be sufficient to define the Employer and the Contractorby name, but sometimes a simple definition is added whichdifferentiates between them, such as “The Contractor means the firmor company whose tender has been accepted by the Employer…”. Thename definition must also include reference to the parties’ successorsand their permitted assigns. The definitions should not contain anymatters of substance concerning assignment (such as reference toconsent by the other party to the Contract) or sub-letting (this aspectis discussed in Chapter 3 Part 3.11).

Limitations on assignment should form a separate sub-clausewithin that part of the section concerned with defining the parties tothe contract. A contractor is never permitted to sub-contract the wholeof the work in a construction contract; this provision should also be setout in a sub-clause of the clause defining the parties.

The definitions of the parties are fundamental to the contract andthe greatest care should be used, when drafting the documents, toensure that the words “Employer” and “Contractor” are used only inthis sense. The usual disclaimer, which says the meanings assigned to


the definitions apply “except where the context otherwise requires”,should not apply to these fundamental definitions. It is rare to have torefer to an employer or a contractor within the context of the contractand there is, therefore, little difficulty in ensuring that the properreferences are made.

The second part of the Section comprises the ordinary definition andinterpretation clauses; the definitions set out in Section 61 of the Lawof Property Act 1925 (see Chapter 2 Part 2.13, Chapter 3 Part 3.9)should be included for contracts in countries where that or similarActs do not apply. Although it is common practice for definitionswhich are applicable only to one section to be included within thatsection, this can be unsatisfactory because such definitions are oftenused in other documents. A typical example is the term “Period ofMaintenance” (or the “Defects Liability Period”) which is oftenincluded in the Section concerned with “maintenance and defects”rather than in the interpretation clause. Reference is often required inthe Specification and this can be the subject of considerablecorrespondence during the administration of the contract. For thesereasons the definition of Period of Maintenance should preferably beincluded in the interpretation clause.

As a general principle, all terms which require to be defined in theConditions of Contract should be included in the interpretation clauseexcept for one-off definitions (which serve a different purpose, asdescribed in Chapter 3 Part 3.12).

The general definitions clause should be followed by otherinterpretive clauses dealing with such matters as clause references,items to be included within the term “Cost”, notices and other similarmatters including (where necessary in the UK) application of theConditions in Scotland.

It is common for lawyers, when drafting documents, to add theirmarginal notes and headings after the document has been drafted andto provide a clause which states that such headings do not form partof the document. Such a clause is never used in engineeringspecifications and is not needed where the document is drafted from alogical contents list.

4.5.2The Engineer

This comes within logic item B and is concerned with the duties of theEngineer and his staff. Although, in most standard forms of Conditions,references to actions by the Engineer and submissions to him arescattered throughout the various clauses and although thoseConditions have a section concerning the Engineer and his


Representative, there is a lack of a general definition of the duties,responsibilities and powers of the Engineer. The ICE Conditionsrefers to the Engineer in approximately eighty per cent of its clausesbut has no clause dealing with the Engineer as such, only a sectiondealing with the Engineer’s Representative. This is surprising, as theEngineer is a key figure in the English forms of contract. Thefundamental requirements that the Engineer should act fairlybetween the parties and should not be obstructed or prevented fromacting fairly, is not dealt with; it is left to vagaries of the common law.

Of all the standard forms, only GC/Works/1 has any summary of theduties of the Engineer (referred to as the SO), although the recentlypublished ICE Conditions of Contract for Minor Works (First editionJanuary 1988) does contain a short list of the Engineer’s powers. Thissummary is limited to the issuing of instructions concerning:

“(a) the variation or modification of the design, quality or quantity ofthe Works or the addition or omission or substitution of any work;

(b) any discrepancy in or between the Specification and/or Bills ofQuantities and/or Drawings;

(c) the removal from the Site of any things for incorporationwhich are brought thereon by the Contractor and the substitutiontherefor of any other such things;

(d) the removal and/or re-execution of any work executed by theContractor;

(e) the order of execution of the Works or any part thereof;(f) the hours of working and the extent of overtime or nightwork to be

adopted;(g) the suspension of the execution of the Works or any part thereof;(h) the replacement of any foreman or person below that grade

employed in connection with the Contract;(i) the opening up for inspection of any work covered up;(j) the amending and making good of any defects in the Maintenence

period;(k) the execution in an emergency of work necessary for security;(l) the use of materials obtained from excavations on the Site;

(m) any other matter as to which it is necessary or expedient for theSO to issue instructions, directions or explanations.”

If, instead of limiting this list to instructions, it is extended to define allthe other duties, such as:

(1) watching, inspecting and testing the Works to detect any non-compliance with the Contract;

(2) certifying the Contractor’s entitlement under the Contract;


(3) deciding disputes;

then this would become a comprehensive statement of the Engineer’sduties. If the Engineer’s relationship to the parties is outlined, e.g.:

(i) the Engineer shall act fairly and independently between theinterests of the Contractor and the Employer; and

(ii) the parties shall not obstruct or threaten the Engineer in theexercise of his duties of fairness and independence;

then there will be a reasonably complete definition of the functions ofthe Engineer.

Whether it is appropriate to include a full description of theEngineer’s functions will depend upon the nature of the contract, theviews of the parties and the opinions of the draftsman concerning therequirements of the work. If, for example, the Employer does not wishto act in accordance with the English contracts system and requiresthe Engineer to act throughout as the Employer’s agent, then thisshould form part of the Contract; an unqualified tender from theContractor will confirm his acceptance of this state of affairs. As in allother matters of contract drafting, the wording and arrangementmust conform to the requirements of the parties and of the work.

4.5.3Contract Documents

This section falls within item C of the fundamental logic— Descriptionof Works. The general and detailed descriptions of Works are usuallyto be found in the Specification, the Bills of Quantities (whereincluded) and the Drawings, so that in practice the Section comprisesa list of the Contract documents together with requirementsconcerning their availability and their interaction.

Many of the standard forms have attached to them a form ofAgreement which lists the contract documents; the documentsdescribing the Works are not, therefore, given in the Conditions.However, almost all forms of Tender provide that the tender and itsacceptance shall form a contract and it is common, even on very largecontracts, for the parties not to sign a formal contract agreement.Only GC/Works/1 sets out the documents which form the Contract, asthe first item of the interpretation clause. If there is no formalagreement then a list of the contract documents is essential and oughtto form the first clause of this section.


The primary documents are the Tender and the notice of acceptance,followed by the Conditions of Contract, the Specification, the Bills ofQuantities (or other payment document) and the Drawings.

It is sometimes suggested that the maximum constructioninformation should be provided on the drawings and that much of theinformation in the Specification could be more usefully provided onthe drawings. This suggestion is based upon the fact that the maindocuments used in construction are the drawings and that theworkmen and foremen are often not fully aware of what is included inthe Specification. This is a mistaken view; each document should dealwith those matters to which it is best suited. The drawings should dealwith the geometrical aspects of the work which cannot be adequatelydescribed in words, whereas the specification deals with thoseparticular general requirements which apply to the Contract and withthe type and qualities of the materials and workmanship, as well asthe constructional and general limitations which are applicable. Thedrawings are also for displaying information which is best illustratedgraphically, such as borehole logs and their location, and the positionof survey or setting out points in relation to the Works. Notes ondrawings should be limited to instructions and should cross refer to theSpecification for particulars of materials and of special requirements.

On large contracts the document draftsman is often not responsiblefor the drawings, but he should nevertheless check the notes and thesubject matter of the drawings to ensure that there are nodiscrepancies between the drawings and the Specification. If changesare made in the Specification, these may involve changing the clausenumbers and it is particularly important not only that crossreferences in the written documents should be checked but that thedrawings should also be checked for the correct cross references to theother documents.

A number of practical matters must be included in this section.They are:—

(i) The supply and custody of drawings and documents.(ii) The hierarchy of the documents, i.e. whether certain documents

overide others in case of differences between them.(iii) The means of clarifying any differences between the various

documents.(iv) Providing additions to the documents which may be required to

deal with practical problems.

In present day contracts the various documents are usually stated tobe mutually explanatory, i.e. one document does not override another,although in certain cases provision is made for the Conditions to take


precedence. Either way, a clause should be included to provide thatany differences will be explained by the Engineer.

In international contracts it will also be necessary to include clausesdealing with the language of the contract documents and ofcorrespondence, the law under which the contract operates, and thecurrencies in which payments are to be made.

4.5.4Commencement and Programme

This section involves both action by the Contractor to speedily carryout all the preliminaries to commencing work on the site (included inlogic item D) and the responsibility of the Employer to make availablethe site, as well as the responsibility of the Engineer to makeavailable documentation and further information which theContractor requires to commence work (all included in logic item E).

An important aspect of commencement of any contract is thecontract planning by the Contractor. This includes both planning thegeneral method of construction, and programming, as well as theprovision of plant and the items of work to be sub-contracted. For thisreason, programming is coupled with commencement, but completion(which is related to different considerations) is included in a separateand later section.

This section should cover only matters connected withcommencement and programme and should be limited to the following:—

(a) The commencement of work and the formal Engineer’s order tocommence.

(b) The handing over of the Site by the Employer and its taking overby the Contractor.

(c) Submission by the Contractor of his programme and of his methodof construction and the Engineer’s consent to them.

The provision for submission of a programme is often coupled with asub-clause dealing with revision of the programme in case of delaysduring the contract. Revision of the programme is not related tocommencement of work; it is concerned with delays which may affectcompletion and ought, therefore, to be included in the section dealingwith Completion, where it can be related more closely to measureswhich have to be taken to mitigate or avoid delays to completion.

In practice, the clauses dealing with the programme and withmethod of construction should preferably be simple and general unlessthe Conditions of Contract are to be applicable only to a limited


number of similar contracts. The detailed particulars required in theprogramme and in the statement of the method of construction arebest dealt with in the Specification, which is more closely related to therequirements of the particular Works.

4.5.5General Obligations

The general obligations referred to are those of the Contractor andthis section is not intended to include any of the obligations of theEmployer. Its fundamental logic is Item D— Duties andResponsibilities of the Contractor.

The general obligations of the Contractor depend upon therequirements of the Employer and the type of work to be carried outunder the contract. However, there are a number of basic items whichare common to most construction contracts. Listed (so far as possible)in serial order, they are:—

(a) Sufficiency of tender.(b) Contractor to provide all things required.(c) Design by Contractor (where required).(d) Safety of operations.(e) Conforming with statutes.(f) Contractor’s superintendence.(g) Quality of the work.(h) Sub-contracting.(i) Setting out.(j) Information to be provided to the Engineer.

(k) Patent rights and royalties.(l) Materials arising from site clearance and excavation.

(m) Preventing nuisance and interference with adjoining users.(n) Transport of exceptional loads.(o) Care of the Works.(p) Damage to persons and property.(q) Insurance.(r) Facilities for other works.

Among the many other items which are often included in contractsand which fall within this section are—corruption and collusion,confidentiality, site access, pollution, requirements of statutoryundertakers, certification of temporary works and progressphotographs.


The large number of contractor’s obligations arises from theindustry’s past experience of disputes and from the fact thatconstruction works have to be properly carried out in order to avoidhidden and latent faults which are not easily corrected later. Unlikeitems of mechanical or electrical equipment, construction work cannotusually be sent back to the manufacturer and changed if it provesunsatisfactory. Most of the items are equally applicable to civilengineering or to mechanical or electrical erection work; many can becombined or replaced by a general clause where this is moreappropriate or where simpler forms are preferred. The followingexplanations of the items will assist with drafting or with modifyingthe items of existing standard forms.

Item (a)—sufficiency of tender, makes provision for avoiding the typeof dispute in which the Contractor says that the Employer knew thatcertain matters had not been taken into account and that thereforethe Contractor was entitled to extra payment in respect of thosematters; it is usual to include a clause declaring that the tender isdeemed to have taken account of all matters required in connectionwith the construction and completion of the Works. Although thisclause obviously forms the basis of the contract it does not necessarilyhave to be included in the Conditions; it can equally well be includedin the Form of Tender, with slightly different wording, provided thatthe Form of Tender is included in the contract Agreement.

Item (b)— Contractor to provide all things required, provides for thesecond basic requirement which is that the Contractor should provideeverything necessary for carrying out the work, i.e. he should not beable to claim that some items are not covered by his tender eitherbecause he has overlooked them or because they are not obtainable.This requirement is not vitiated if the contract provides for theEmployer to supply some material or plant; the Contractor remainsliable in theory if the materials or plant supplied by the Employerprove faulty but will have a claim for such faulty supply which wouldbe equal to the claim by the Employer under the Contract and theseclaims would, therefore, cancel out so the Contractor would not, inpractice, be liable for faults in the Employer’s supply items.

Item (c)—design by the Contractor (where required), provides for anexplicit statement to be included if the Contractor is to be responsiblefor design of the whole or part of the Works. This may be included as asub-clause of the clause which says that the Contractor shall provideall things or (if his design is a major item) in a separate clause.Alternatively, where the Conditions and the Specification have equalstatus under the Contract, it can be omitted from the Conditions andincorporated in the Specification, but this is not recommended wherethe Contractor has to design a substantial part of the Works. The


Specification may, in any case, have to detail the extent of design to becarried out by the Contractor.

Item (d)—safety of operations, is intended to ensure that the safetyof everything connected with carrying out the work is part of thegeneral or basic obligations of the Contractor. Any division of theresponsibilities for safety is likely to be counter-productive and theContractor must be entirely responsible and must be required to setup the necessary organisation to ensure safe working. The safetyrecord of the construction industry, particularly in relation toaccidents to workmen at site, is poor; the enforcement of safetyprovisions which are incorporated in the contract can help to mitigatethe problem on individual contracts.

Item (e)—conforming with statutes, is the last of the general orbasic obligations and provides for the Contractor to comply with allstatutes and statutory regulations and bye-laws. Although theContractor (like everyone else) has a legal obligation to comply withstatutes, the inclusion of a clause in the contract means that a failureto comply is also a breach of contract and that the Employer can claimdamages from the Contractor if he is put to expense as a result of theContract’s failure to comply. Many construction operations are thesubject of statutory regulations and require consultation withstatutory authorities and the payment of fees; the clause concerningcompliance with statutes must be drafted so as to draw attention tothese requirements and make the Contractor responsible for suchconsultations and payments. However, it would be vexatious andinappropriate for the Contractor to have to comply with statutoryrequirements in connection with those things for which the Employerhas to be responsible, i.e. for regulations applicable to design notcarried out by the Contractor, for the completed Works and inconnection with the land on which the Works stands. There musttherefore be a proviso removing responsibility from the Contractor foritems such as planning permission. Some Employers also require aprovision that the Contractor shall comply with common law, but thisis unusual.

The other obligations of the Contractor generally stem from theforegoing and may be regarded as amplifications of particular aspectsof those obligations. They are equally applicable to all types ofcontract involving site work and to many manufacturing contracts.

Item (f)— Contractor’s superintendence, concerns the quality of theContractor’s site staff and particularly the ability of his agent, whichdetermines whether the work will be done well and profitably. Inorder to safeguard the Employer it is essential that the Engineer shouldcarefully vet the Agent’s qualifications and experience; the clausemust provide for this as well as requiring that the Agent shall devote


the whole of his time to the work and be empowered to take allinstructions on behalf of the Contractor. There should also beprovision for a deputy able to take instructions on behalf of theContractor when the Agent is unavoidably absent from the Site.

Item (g)—quality of the work, deals with the general obligationregarding the quality of work and should be limited to requiring thatthe work be carried out to the satisfaction of the Engineer. The moredetailed requirements should be dealt with in the section dealing withmaterials and workmanship.

Item (h)—sub-contracting, is intended only to give the Engineerpower to refuse to approve a sub-contractor whom he considers not tobe acceptable for the proposed work.

Item (i)—setting out, is intended primarily to ensure that theContrac-tor’s responsibility to provide and carry out all thingsnecessary for the construction of the Works includes this importantmatter. It may be necessary for the Engineer’s staff to work closelywith the Contractor on setting out and it is important that theConditions should be drafted so that any liaison or checking by theEngineer or his staff does not absolve the Contractor from hisresponsibility. The detailed requirement for setting out are best dealtwith in the Specification; the Conditions should, therefore, only dealwith the general aspects of providing all those things required forsetting out and of the Contractor’s responsibility for accuracy and forassisting the Engineer in checking.

The foregoing items (a) to (i) represent general obligations whichare directly connected with constructing the Works. For largecontracts they are usually elaborated further in later sections dealingwith Labour, Workmanship and materials, Completion, andMaintenance and Defects. In small contracts, where extensivedocumentation is not required or might be inappropriate, the generalobligations may suffice or they may be subject to some degree ofelaboration to cover details appropriate to a particular class of work.

Item (j)—information to be provided to the Engineer, is included toenable the Engineer to monitor that the Contractor is carrying out hisobligations. For this, a clause is required in the Conditions dealingwith the provision of information from time to time by the Contractorto the Engineer. It will provide the basis for the Engineer to giveconsent to the Contractor’s proposed methods and will generallyspecify information to be provided concerning:

(i) revision of the programme for construction of the Works;(ii) descriptions of the proposed methods of construction;(iii

)regular progress reports;


(iv)

details of unexpected physical difficulties;

(v) particulars of labour, plant, and materials brought on to the Site;(vi

)advance warnings of commencement of operations both on and offthe Site;

(vii)

particulars of sub-contracts and of correspondence and discussionswith local authorities and statutory bodies;

(viii)

documentation of other responsibilities such as insurances.

It is important that the number of copies of documents that theContractor must provide shall be stated as well as any specialconditions concerning particular types of documentation. Thedraftsman must appreciate that the Contractor can only be requiredto give information which forms part of his obligations under thecontract. This must be spelt out clearly either in the generalobligations or in the later sections elaborating those obligations or, inthe case of constructional methods, in the Specification. It must alsobe appreciated that this clause or its later elaboration can include anysort of information connected with the Contract, provided thattenderers are willing to agree to give the information stated. It ispossible to include in such clauses that the Contractor shall, uponrequest, supply the original estimate papers upon which his tender hasbeen based, but it is unlikely that contractors will wish to accept thiswhen tendering. However, many overseas contracts require thetenderer to give a breakdown of all items into labour, materials andplant cost and, if necessary, to demonstrate that the figures given aretruly representative.

Most civil engineering contracts provide for additional payments forunforeseen additional difficulties arising during construction.Mechanical and electrical construction contracts usually have similarprovisions for unforeseen difficulties in excavation for undergroundservices. In order to be able to check the Contractor’s claim concerningsuch constructional difficulties it is essential, and a prerequisite forthe consideration of these claims, that the Engineer is informed assoon as such a problem arises and that full constructional and costinformation is made available to him at the time to enable the effectsand the cost to be monitored. Entitlement to payment is a separatematter which should be dealt with in the section concerning ContractPrice. The draftsman must, therefore, include within the informationclauses any requirements for information concerning thoseconstructional difficulties which the Contractor considers areunforeseen and which may give rise to a claim for payment inaccordance with the relevant clause in the Contract Price section of


the Conditions. The drafting of the clause concerning information canbe of considerable financial significance and must be carefullyconsidered in relation to the type of work involved in the contract.Problems have often arisen in connection with Clause 12 of the ICEConditions (which deals with unforeseen difficulties); in many cases itis desirable to rethink the requirements rather than to slavishly followdrafting of the information required in Clause 12.

Item (k)—patent rights and royalties, and (l)—materials arisingfrom site clearance and excavation, are concerned with safeguardingthe parties against claims concerning financial responsibility formaterials and operations. The Employer will want to be assured thathe will not be liable in respect of claims by allegedly injured partiescontending that there has been infringements of patent or copyright inmaterials and operations used in the Works. The Contractor will betaking up and, in many cases, disposing of materials which are on thesite and which, presumably, are the property of the Employer andneeds to know to whom the ownership passes in respect of disposal ofthose materials. The ownership of valuable items such as coins orantiques is usually dealt with in standard conditions, but theownership of less valuable items such as excavated materials to bedisposed off site is often ignored. Where large quantities are involved,the financial implications concerning ownership of materials fromexcavations or from site clearance may be more important than thefew items of high value which may be found. Contracts should clearlystate which of the parties becomes the owner of the material which isremoved from the site as well as stating when ownership passes fromone party to another, e.g. does ownership pass when the materialleaves the site or when it is transferred to a third party (such as theowner of a tip) or when it is actually lifted from the site and perhapstransferred to the Contractor’s stores on the site? The clauses of item(1) should set out the contract provisions in this respect in order toavoid later disputes concerning items such as minerals or evenrelatively less expensive items such as top soil. The materials referredto here are not to be confused with materials which are used in theWorks and which are dealt with in the section dealing withWorkmanship and Materials; the clauses in item (1) should dealonly with the Contractor’s general obligations to distinguish betweenthose items which continue to be owned by the Employer and thosewhich are transferred to the ownership of the Contractor.

Items (m)—preventing nuisance and interference with adjoiningusers, and (n)—transport of exceptional loads, deal withenvironmental problems such as keeping roads clean, tipping only inapproved areas, avoidance of pollution (including noise pollution),damage to roads, strengthening of bridges and other structures to


carry exceptional constructional loads, and many similar matters. Theprovisions concerning roads, bridges and structures may be concernedwith matters occurring hundreds or even thousands of miles from thesite. The clauses should deal with the actions to be taken by theContractor in connection with these matters, including safeguardingthe interests of the Employer. Any payments to be made to theContractor should be dealt with in the section dealing with ContractPrice.

Items (o)—care of the Works, (p)—damage to persons and property,and (q)—insurance, deal with the general action to be taken by theContractor to avoid damage to persons or property and the safeguardsto be provided to the Employer in case such damage takes place. Inthe case of damage to the Works the Contractor must take promptaction to repair or make good any damage which occurs, in order toensure completion in accordance with the contract requirements. Inthe case of damage to property of the Employer or third parties theContractor should be required to indemnify the Employer against suchdamage or claims and the clauses should be drafted accordingly.Because claims by third parties may be very large compared with thevalue of the contract or with the assets of the Contractor, he isnormally required to insure against such claims and also to insureagainst damage to the Works.

Insurance requirements can cause difficult drafting problems andmay require expert advice. However, such expert advice must betreated with caution as it is usually related to the practices of theinsurance companies with whom individual experts are connected. Onmany matters there are divergencies of practice between differentinsurers; insurance clauses must, therefore, be drafted in generalterms which avoid being tied to particular practices. Some employers(such as many large oil companies) arrange their own insurances,while many government organisations act as their own insurers. It isessential for the draftsman to obtain full particulars of the Employer’sinsurance requirements and to ensure that the clauses clearly statewhich items are to be excluded from the Contract’s insurance policies.It is also essential to clarify the requirements concerning exclusionsand excesses. Third party policies should normally state the minimumamount of insurance for any one incident and that the number ofincidents shall be unlimited. Excesses (i.e. the amount of any claim tobe met by the insured) should be subject to a limitation to be stated inthe clause. Other matters which require to be dealt with are whetherthe policy is to be in the joint names of the Contractor and theEmployer and to whom the amount of any claim is to be paid. It is alsousual to exclude from the Contractor’s liability any damage caused bythe Employer or the Engineer or their staffs.


Item (r)—facilities for other works, is concerned with the problem,common in construction, of a number of different contractors workingon the site at the same time; this is particularly the case withmechanical and electrical erection contracts. In order to avoiddisputes it is essential that clauses be included in the Conditions ofContract and in the Specification dealing with this matter. TheConditions of Contract should deal only with the right of theEmployer to employ other contractors on the site concurrently and forthe Contractor to allow appropriate facilities for such othercontractors. The Specification should give detailed particulars of othercontracts which will or might be taking place concurrently, withsufficient information for the Contractor to make the necessaryprovision for co-ordination or for adjustment of his own work.

The foregoing commitments cover the majority of the items usuallyrequired under the heading of “general obligations”, but there areobviously a large number of other possible items which may berequired by the nature of the work or the requirements of particularemployers. In the latter case the Employer will often have standardclauses which can be taken over by the draftsman and incorporated inthe Conditions. The draftsman has, however, an obligation to ensurethat the drafting of any standard clauses supplied by the Employer isconsistent with other contract clauses and he may need to modifyother clauses or agree modification to the Employer’s clauses for thispurpose.

4.5.6Labour

The section dealing with labour is intended to provide safeguardsconcerning the payment of fair wages, the provision to be made forhousing employees, and for the necessary welfare and cateringfacilities. In the UK the provisions are usually fairly simple and maybe limited to requirements concerning fair wages; until recently thiswas often by reference to the House of Commons Fair WagesResolution, but this has now been rescinded and reference is madeinstead to national agreements between trade unions and employers or(in the case of local authorities) reference to the Local Authorityresolution or standing orders. Requirements for housing importedlabour (not usually expatriate) and for canteen facilities, vary fromcontract to contract and, in the UK, are reasonably short and limited;the provisions of labour agreements, of planning controls and of theHealth and Safety legislation will usually govern these requirements.

In international contracts there is usually a need for much moreextensive provision, particularly in respect of expatriate staff and


labour, but this varies from country to country and must be thesubject of discussions with the Employer. As an example, the basicprovisions in the earlier FIDIC Civil Conditions covered:—

Engagement of labour.Supply of water.Alcoholic liquor or drugs.Arms and ammunition.Festivals and religious customs.Epidemics.Disorderly conduct etc.

There are many other provisions which may be needed, some of whichare best dealt with in the Specification. This particularly applies toitems such as provision of canteens and of first aid and/or ambulanceand hospital facilities, which may require very detailed clauses relatedto the location of the site.

Although it is common to provide in the Labour section for daily orweekly returns of labour employed, this is best dealt with under theheading of “information to be supplied to Engineer” in the section onGeneral Obligations or in a related section of the Specification.

4.5.7Workmanship and Materials

This section falls within fundamental logic item D and is mainlyconcerned with the general provisions for inspection, sampling andtesting. The materials referred to should more accurately be describedas “things for incorporation in the Permanent Works” and these mayrange from cement to emergency generators forming part of buildingservices or hydraulic equipment for operating a swing bridge. Thisprecise definition is worthwhile in order to distinguish between suchmaterials and the materials from excavations or demolition ormaterials which form part of the Temporary Works.

Because of the variety of materials which may be involved,inspection and testing will cover a very wide field, ranging fromchemical tests of water to trial erection of steelwork or plant.Thedetailed requirements can only be dealt with in the Specification foreach contract; the Conditions of Contract must be limited to basicgeneralities such as that the Contractor shall supply samples wheninstructed and shall provide access for inspection. The subjects to bedealt with are reasonably well defined and may be listed as follows:—


(i) A clause is required stating that work and materials shall be asdescribed in the Contract or as instructed by the Engineer andthat the Contractor, shall, if required, demonstrate that they soconform. Because it is not always possible to inspect or test everymaterial or activity (particularly where there is concealment) it isessential to state that failure by the Engineer to disapprove of anyworkmanship or materials shall not prejudice disapproval at alater date.

(ii) The Contractor must be required to provide samples ofconstructional materials, i.e. of those “things for incorporation”from which the Works are to be constructed. These samples maybe either for testing or for initial approval as examples forcomparison with bulk materials which are delivered during theconstruction of the Works. In the latter case the samples must besupplied packed for storage by the Engineer .

(iii)

The Contractor will either have to carry out tests himself orsupply the samples to the Engineer or to an approved laboratoryfor testing. Provision should be made for some tests to be carriedout by an independent laboratory whose results will be acceptableto both parties.

(iv)

The Contractor must arrange for access to be available to theEngineer and his staff for inspecting all materials at their place ofmanufacture and, if necessary, to view the manufacturing of thevarious items. In the case of large items manufactured off the site,the Engineer may require an office to be provided at themanufacturer’s works, but this provision is best incorporated inthe Specification alongside any other provisions for officesrequired by the Engineer.

(v) There must be a specific provision entitling the Engineer toinspect any item and this should include the right to requiredismantling of manufactured items or uncovering or dismantlingof items which have been covered up on the site, as well as trialerection in the manufacturer’s works in order to check that theitems will be satisfactory when erected on the site.

(vi) A provision is required whereby, if the Contractor cannotpromptly remove or replace or make good any item which theEngineer condemns, then the Employer will be entitled to arrangefor others to carry out the work.

The power of the Engineer to order additional work is limited to thoseitems which are reasonably required for completion of the Contract.The Engineer would not, for example, have the power to order theconstruction of a permanent road in a contract for laying cables,unless the contract specifically provided for such a permanent road.


However, there are occasions when it is necessary for the Engineer tohave exploratory investigations made which are of a character whichis different from that of the Permanent Works; exploratory borings tocheck the properties of the soil, foundations or embankments fall intothis category and, unless specific provision is made in the contract forthem, it can be argued that they do not form part of the Works andthat it is outside the powers of the Engineer to instruct the Contractorto carry out such exploratory borings. Because of this consideration itis usual to provide a clause requiring the Contractor to carry outborings or other exploratory works if so directed; the GeneralObligations section is the appropriate place for such a clause.

In the case of mechanical and electrical works where tests oncompletion of the whole or parts of the installation are of greatimportance, it is desirable to set out in some detail the periods ofnotice to be given by the Contractor and by the Engineer respectivelyfor testing, for witnessing tests and for related matters.

4.5.8Property in Materials and Plant

The purpose of this section is to safeguard the Employer against theremoval of plant or materials which have been brought to the Site. Ittherefore involve both items D and E of the fundamental logic.Improper withdrawal of plant or materials from site may give rise totwo problems;

(a) the withdrawal may prejudice contract completion; and/or(b) the plant or material may represent collateral for an advance

against “materials on site” and its removal from site would leavethe Employer at risk in respect of the advance payment he hasmade.

It is necessary to include clauses in this section which provide that:

(i) plant and materials brought on to the Site shall be usedexclusively for the Works and shall not be removed from Sitewithout the permission of the Engineer;

(ii) all surplus plant and materials shall be removed from the Site oncompletion of the Works;

(iii) item (i) and (ii) shall not be deemed to give approval of the qualityof any work or for use in the Work of any plant or materialsbrought on to Site.


In the UK, item (i) usually consists of a provision that plant andmaterials owned by the Contractor and brought on to site by him aredeemed to become the property of the Employer but shall revert to theContractor when the Engineer permits them to be removed from thesite. Elsewhere than the UK such a provision may not be legallyeffective. The provision regarding ownership is not normally includedin international contracts.

A related problem arises when advances are made by the Employeragainst material lying in the Contractor’s works or in the works of amanufacturer supplying the items to the Contractor. This situationarises when a substantial part of the Works are goods such asstructural steelwork which has to be fabricated off the site or consistsof items of specially manufactured plant. The plant or material is theneffectively collateral against the advance and, in order to safeguardthis collateral, legally effective clauses are required which transfer theownership of those items of plant or materials to the Employer. Suchclauses can be complicated and require legal advice if they have to bedrafted specially for a contract; Clause 54 of the ICE. Conditions hasbeen drafted to deal with this problem. An alternative is to requireany advance to be covered by a bond from a bank or insurancecompany, but the bond must be carefully drafted to provide forpayment by the bank or insurance company of the amount of theadvance “on demand” by the Employer; a bond for “due performance”is unlikely to prove satisfactory as a collateral against an advancepayment.

4.5.9Nominated Sub-contractors

Nominated sub-contractors are peculiar to construction contracts andare not much used elsewhere. The requirements involveresponsibilities of both the Contractor and the Employer and thereforeinvolves both items D and E of the fundamental logic.

Sub-contractors may be nominated by name in the contract or maybe nominated in the course of the contract by the Engineer inconnection with Provisional Sums or for additional work. Wherenominated sub-contractors are named in the contract and tenderingcontractors are able to obtain quotations from them for their work,then no particular difficulty arises unless the sub-contractor fails, inwhich case the Engineer will have to nominate an alternative. In somecases the Contractor may have to obtain quotations and offer analternative as part of his responsibilities. Where a sub-contractor isnominated during the course of the contract, complications may ariseif the sub-contractor is unwilling to enter into a sub-contract on the


terms proposed by the main Contractor and also if there is a failure bythe sub-contractor, particularly if the terms of the sub-contract aredifferent from the terms of the main contract. Because of thesecomplications the industry today tries to avoid nominated sub-contracts so far as possible and, as an alternative, to specify either byduty or by product; in the latter case an equivalent product is usuallypermitted.

The problems with nominated sub-contracts arise from a lack ofsufficient information which would enable a tenderer to make firmfinancial and contractual arrangements prior to award of the contract.The draftsman must overcome these problems by including provisionswhich are firm where information is available pre-contract, but whichare fair to both parties where information is only available post-contract.

If the necessary information is available pre-contract, and it isconsidered advisable to pre-order, then an order for the work shouldbe placed with the proposed sub-contractor with a provision that theorder shall be taken over in its entirety by the main Contractor whenappointed. For work in the UK the order should be drafted on thebasis of one of the standard forms of sub-contract (because they areknown and acceptable to both contractors and sub-contractors) andshould include a copy of the appropriate parts of the main contractdocuments. If the nominated sub-contractor is then named in thetender and a copy of the order is one of the tender documents, themain Contractor will have fully accepted the sub-contractor. A typicalclause in the contract would then read—

The Employer has placed orders for various items of work andmaterials; these are described in the Contract and copies areannexed to the Contract. The Contractor shall take over each ofthe orders immediately after the Contract is awarded and, within21 days of the date of acceptance of the tender, the Contractorshall inform each sub-contractor or supplier that the order hasbeen taken over by him and that he assumes full responsibilityas the main contractor or purchaser for the work and/ormaterial. The Contractor shall concurrently inform the sub-contractor or supplier of any adjustments to quantities or toprogramme which may be required and thereafter the Contractorshall be entirely responsible for the provision of all the work ormaterials and no further reference shall be made to “ordersplaced by the Employer”. Copies of all correspondence betweenthe Contractor and each sub-contractor or supplier concerningtaking over of orders shall be forwarded to the Engineer at thetime of despatch or receipt. The foregoing arrangement shall not


relieve the Contractor of any of his responsibilities or duties forthose items of work or of materials supply in accordance with theContract.

The sub-contract or supply order can then be treated in every way asthough it had been placed by the Contractor on his own initiative,rather than as a nominated sub-contract or supply order.

If nominated sub-contracts or supplies may have to be arrangedafter the main contract has been placed, then this section shouldinclude clauses setting out the procedure to be followed by the mainContractor for obtaining quotations from suitable sub-contractors froma list provided by the Engineer and acceptable to the Contractor. Theprocedure should set out the requirements of the form of sub-contractnecessary to safeguard the interests of the Employer, as well as theprocedure for opening the sub-contract offers and for approval andnomination by the Engineer. It is most undesirable for nominated sub-contractors or suppliers to be appointed except as part of the mainContract and on the basis of quotations obtained by the Contractor.

In addition to the foregoing it is essential that the following mattersbe covered in the drafting of clauses for this section:—

(a) The responsibility for control of the sub-contractor and forinstructions to him and for all other matters under the contractshall rest with the Contractor.

(b) The procedure in case of termination of the sub-contract should beset out.

(c) Where a nominated sub-contract includes design, the Contractorshall be responsible for the design of that part of the Work.

In conjunction with (c), it is essential that any nominated sub-contractor provisional item in the Contract which may involve design shouldhave a reference to that design requirement in the Contractdocuments.

Many standard forms of Conditions include clauses dealing withProvisional Sums in the same section as nominated sub-contracts.Such clauses are, however, concerned with Engineer’s instructions forcarrying out the work and with payment for it. They should be dealtwith either in the section dealing with the powers of the Engineer orunder the heading of Contract Price or Terms of Payment.


4.5.10Completion

Completion involves the responsibility of the Contractor to completeon time and the duty of the Employer (through the certificate of theEngineer) to accept extended times for completion (where provided inthe Contract) or to negotiate with the Contractor to extend theContract to cover acceleration of the work. The section falls withinlogic items D and E.

The first clause of this Section must require the Contractor tocomplete the Works and any specified Sections within the times statedwithin the Contract. The period or periods are usually set out in aseparate document as an appendix to the formal Tender or as aschedule attached to the Contract; it is sometimes inserted by theEmployer before tenders are called, but may alternatively be insertedby the tenderer as part of his Tender. In many contracts there isprovision for a section or sections of the Works to be completed withinshorter periods, to enable the Employer to use those sections at anearlier date or to arrange for further work by others to make themready for use. Sometimes, although there may be no sectionalcompletions stated in the contract, the Employer may take over partof the Works before completion of the remainder; such taking over isusually defined in the Contract as the equivalent of sectionalcompletion.

Completion of the whole of the Works would appear to be fairlyobvious and not requiring definition. However, in practice Employersare willing to accept work which has not been completed to the lastpiece of fence or the last nut and bolt rather than delay taking over.Many contracts, therefore, use the term “substantial completion” or“practical completion” and accept that minor items (to the extentacceptable to the Engineer) may be completed during the MaintenancePeriod. Such minor items ought to include clearing the Site and it isalso desirable that the clauses in this section should give somegeneral definition of the type or extent of such minor items that maybe completed later.

In the completion schedule, Sections are referred to by numbers,thus Section 1, Section 2, etc. The detailed definitions of Sections forpartial completion are generally so specific that they are best dealtwith in the Specification. Those definitions are necessarily related tothe completion of particular items, so that the need for “substantialpartial completion” does not arise.

There are a number of matters which normally entitle theContractor to an extension of the completion period. The mostimportant of these arises when a variation order is issued requiring


additional work or a change in the method of construction, whichcauses delay. This section of the Conditions must include clauseswhich:

(a) set out the matters which give rise to an entitlement to anextension of the completion period, preferably by cross reference tothe requirements of the other clauses of the contract; this willrequire a review of the other contract clauses;

(b) require the Contractor to notify the Engineer when it appearslikely that a delay will occur due to a matter for which there is anentitlement to extension of the completion period and to state theeffects of that delay;

(c) require the Contractor to minimise the delay where this ispossible without additional expense;

(d) require the Engineer to extend the completion period when delayarises due to the matters set out in the clause dealing withextension of time.

Generally, the Engineer is required to extend completion as soon asthe probable extent of delay is known. Because of the difficulty ofascertaining the extent of the delay, provision is often made for reviewof the extension of time by the Engineer, although it is usuallyaccepted that such a review cannot reduce the period of extensionbecause the Contractor will have already arranged his working to suitthe extended period previously granted.

Many standard forms of Conditions include within this sectionprovision for liquidated damages if the Contractor fails to completewithin the contract period. Liquidated damages logically form part ofpayment for the work; they are a contra-charge by the Employer fordamage he has suffered as a result of the Contractor failing tocomplete in time and are deducted from payments due from theEmployer. Clauses concerning liquidated damages should, therefore,form part of the section concerned with the contract price, whichshould deal with all payments and contra-charges by the Employer.

4.5.11Maintenance and Defects

The Contractor is responsible for any defects which arise in the workas a result of defective workmanship and materials. This section ofthe Conditions deals with that obligation and, in many contracts, isconcerned only with those Contractor’s duties which fall within logicitem D. In mechanical and electrical erection contracts and inlandscaping contracts it is necessary for the Contractor to have access


to the work during its occupation and use by the Employer; this is fortesting and inspection or for cultivation if required. The Employer hasa duty to make such access available, so the matters also fall to somedegree within logic item E.

It is usual to require the Contractor to make good any defects whichappear within one year of completion and this period is referred to asthe Maintenance Period or the Defects Liability Period. In the case oflandscaping work the Maintenance Period is often two years, in orderto ensure that plants and trees are growing healthily before theContractor is relieved of his responsibilities.

To enable the parties to finalise their responsibilities, the contractnormally provides that the Contractor’s responsibility for the defectiveworkmanship or materials ends when he has made good any defectswhich arise during the Maintenance Period. This does not relieve theContractor of responsibility for latent defects which may appear at alater date or for defects which arise from his failure to carry out thework in accordance with the Contract and of which the Engineer andthe Employer were unaware at the end of the Maintenance Period.

In many types of engineering work, the causes of defects whichappear at various times may be difficult to ascertain immediately andmay require considerable investigation. In those types of work(particularly civil engineering work) it is usual to require theContractor to repair all defects but only to hold him responsible forthose defects which are determined by the Engineer to arise from theContractor’s defective work or materials.

In some contracts it may be necessary for the Contractor to carry outnormal maintenance as well as repairing defects. It is, therefore,important for the draftsman to define precisely the duties of theContractor in the Maintenance section.

It may be necessary for part of the work to be removed or forexcavations to be carried out in order to find the cause of a defect. Thedraftsman must include a clause requiring the Contractor to searchfor the cause of defects, as directed by the Engineer.

In many standard forms a provision is included in the Maintenancesection to allow the Employer to arrange for defects to be made good ifthe Contractor fails to do so within a reasonable time and to charge thecost of such making good to the Contractor. The Employer’s remedy inthis case could be included within this section, but is moreappropriately accommodated in the next section dealing with theEmployer’s remedies and powers. The Employer’s contra-charge forcarrying out the work is logically to be included in the section dealingwith Contract Price.


4.5.12Remedies and Powers

This section is primarily concerned with the actions the Employer isentitled to take if the Contractor fails to carry out his responsibilitiesunder the contract and is, therefore, primarily related to logic item E.However, it ought also to deal with the Contractor’s remedies againstthe Employer, such as in connection with the indefinite suspension ofthe Works. Moreover, as part of the Employer’s remedies there may bea duty on the Contractor to take certain actions such as assigningorders for materials to the Employer. There may therefore be asubstantial element of logic item D in this section.

The section is one of three in which the draftsman has to reviewprevious clauses to ascertain the matters to be dealt with. In thesection on Completion it was necessary to review previous clauses toascertain the causes of delay as the basis for Extensions of Time; in thesection on Contract Price and Liquidated Damages it will be necessaryto review the previous clauses to ascertain which are to be subject of aclause concerning payment or contra-charge. In addition, in thesection concerning Certificates a review of certain sections will berequired in order to define the certificates to be provided by theEngineer and the time at which certification is to take place.

The main matter likely to arise from a review of the clauses of theConditions will be the Contractor’s failure to comply with theEngineer’s instructions within a reasonable time, particularly inconnection with urgent requirements such as repairs to damagedstructures. The usual remedy for this is for the Employer to employother workmen or contractors; this will involve provision for a contra-charge in the section concerned with payment. Mention was made inthe previous section (Maintenance and Defects) concerning failure toremedy defects; this is likely to result from failure by the Contractorto act on an instruction from the Engineer to carry out remedialworks.

In addition to the items arising from review of earlier clauses, theEmployer needs to be entitled to determine the Contract and takeover the Site (if appropriate) in case of bankruptcy or liquidation ofthe Contractor or if the Contractor delays excessively the carrying outof the Works or on other serious default of the Contractor. TheEmployer also needs to be able to take over materials supply ordersand sub-contracts; the draftsman must frame the clauses so that theContractor is required to assign the benefits of such orders or sub-contracts to the Employer, should such an eventuality arise.

This section should also include clauses dealing with the Contractor’sremedies in case of failure by the Employer to carry out all his duties


under the Contract. Most of these remedies are likely to be financialand should be included in the sections dealing with payment, althoughsome contracts give the Contractor the right to determine theContract if there is excessive delay by the Employer in making interimpayments. However, in case of extended suspension of the Works, theContractor must have the right to determine the whole or part of theContract, and this right should be set out in suitable clauses as part ofRemedies and Powers.

4.5.13War Clauses

The term “War Clauses” is intended to be a generic term for thosesituations in which the Contract needs to be determined due toexternal causes such as war or frustration and also where provision isto be made for unilateral determination by the Employer. It mayalternatively be referred to as “Special Powers of Determination”.

The Clauses must provide for instructions by the Employer (or bythe Engineer on his behalf) and for action by the Contractor toterminate work both on and off the Site. It, therefore, falls into logiccategories D and E.

The section requires the provision of clauses which define themeaning of war for the purpose of the Contract and also the meaningof frustration. The definition of frustration may vary with differentsystems of law, but in the case of construction it is preferable for theparties to agree that the contract has been frustrated; the definition inthe FIDIC E & M Conditions sets this out clearly. It reads—

‘…the term “Frustrated” shall mean the prevention of thefulfilment of the Contract by reason of war or by any cause orcauses agreed by both the Employer and the Contractor to bebeyond the control of either of them.’

The common requirement of all the matters to be dealt with in thiscontext is to set out measures which have to be taken to protect theWorks and the Site and to remove plant and surplus material andleave the Site ready for possible resumption at a later date. Thisprovision is usually in terms of instructions by the Engineer but, inparticular contracts, the draftsman may be able to state specificrequirements which will automatically take effect. There must, ofcourse, be a provision for the Contractor to carry out all the necessarymeasures so far as they are practicable in the circumstances.


Other provisions which have to be made are in connection withpayments and these should be dealt with in the section dealing withContract Price.

4.5.14Contract Price and Liquidated Damages

This section is entirely concerned with payment to be made by theEmployer and therefore falls within logic item F. Contra-charges andliquidated damages included within the section represent, in essence,deferred payments or payments made by the Employer to otherparties on behalf of the Contractor. This section should be concernedonly with entitlement to payment and not with the mechanism ofpayment or the time at which payment is made, which should be dealtwith in the following two sections.

Payments fall under three headings:—

(1) The Tender Price. (2) Additional payments or reductions resulting from Engineer’s

instructions or from actions arising from the operation ofparticular clauses of the Conditions of Contract.

(3) Contra-charges which the Employer is entitled to make inaccordance with the Contract.

Damages for breach of contract (other than where a specific conditionconcerning payment or contra-charge is made in particular clauses ofthe Contract) are excluded from the contract provisions and must bedealt with separately.

The Tender Price is that price which was agreed at the time ofletting the Contract. It may be a fixed lump sum or it may be variable,as in a remeasurement contract with Bills of Quantities or based upona Schedule of Rates. When remeasurement is required to ascertain thesum, clauses must be included in this section setting out the basis ofmeasurement (in the UK this would normally be in the form of aquoted Standard Method) and arrangements for remeasurement.Provision should be made for the Contractor to attend when theEngineer is taking measurements and for preparation of anyadditional site drawings necessary for measurement purposes.

For those lump sum contracts which do not include a Bill ofQuantities or a Schedule of Rates for valuing variations, it isadvisable to provide a schedule setting out the price for the variousparts of the work, the total of the Schedule being the Tender Price.Such a Schedule will assist in pricing variations and will form a basisfor certifying interim payments.


One of the problems in drafting contracts is that, in the course ofdrafting the substantive requirements, the draftsman becomes soinvolved in the minutiae of those requirements that it is difficult forhim to take a detached view of the financial implications. The effect ofexcluding financial or price considerations from the substantiveclauses and collecting them in a separate section (under the headingof “the Contract Price”), is to allow the draftsman to review thesubstantive clauses after he has drafted them and thereby to take amore detached view of the financial effects. A review of various draftclauses of the Conditions, to elucidate their financial implications, isin itself a valuable exercise which may result in redrafting of some ofthe clauses to improve the wording and remove possible ambiguities.

Many of the items of additional payment or savings arise fromvariation orders issued by the Engineer for additional or reducedvolume of work or for varying the type of work to be carried out. It isessential to include clauses setting out the method to be used forvaluing variation orders, including provisions for daywork ordered bythe Engineer. Valuation of variations in a contract with a Bill ofQuantities can be relatively simple, but for lump sum contracts,particularly where these involve design by the Contractor, it may onlybe possible to define valuation in very general terms and to put theonus on the Engineer to arrive at a fair valuation.

Each additional payment or saving which will be made by theEmployer in connection with a substantive clause of the Conditionsmust be set out in an appropriate clause of this section. Typically,these clauses may include:

(a) disruption due to the failure of the Engineer to give an instructionwithin a reasonable time, after a request from the Contractor;

(b) additional costs to the Contractor arising from the effects of workby other contractors of the Employer;

(c) additional costs arising due to the action of employees of theEmployer;

(d) additional costs arising from insurance risks excluded from thecontract clauses;

(e) the costs of uncovering work which proves not to be defective;(f) failure of the Employer to hand over part of the Site in good time

to enable the work to be carried out in accordance with theprogramme;

(g) any penalty to which the Contractor is subject at law, as a result ofcarrying out Works in accordance with Contract;

(h) making good of defects for which the Contractor is not liable;(i) physical conditions which could not reasonably have been foreseen

by an experienced contractor.


This list is not intended to be comprehensive; not all of it will beapplicable to any particular contract. Applicability will also depend onthe Employer’s willingness to carry the risks involved or alternativelyto require the Contractor to include for those risks in his tender price.

The drafting review and the listing of possible additional paymentsresulting from the requirements of substantive clauses enables thedraftsman to discuss with his client which payments are to beincorporated in the Conditions and which are to be omitted. Thisprocedure also allows the Employer to explicitly decide the risks whichhe will meet; the Contractor will then have to incorporate theremaining risks in his Tender Price.

It should be noted that some of these matters, such as actions byother of the Employer’s contractors, are not risks but are matters forwhich the Employer is vicariously liable and cannot, therefore,reasonably be excluded from payment.

Special payment provisions are required to deal with the WarClauses section and for any other clauses which provide fordetermination before completion. Many of the provisions for paymentfor early determination are alternative to the payment provisions for acompleted contract; the draftsman must clearly set out thoseprovisions which may involve alternatives, in a manner which willensure that they are substituted.

For contracts which are to last more than 2 years it is usual toprovide for payment adjustments to take account of market pricefluctuations. In the UK there are a number of standard clauses andformulas (Baxter, Osborne, BEAMA etc.), based on published indices,which the draftsman should use. Where there are no suitablepublished indices the price fluctuation clause will have to be based onmarket price quotations and the inclusion of a Schedule of BasicPrices of Materials and Labour in the Contract. Clauses will also berequired to deal with variations in tax legislation directly affecting thecontract such as labour-tax matters and VAT. These are best draftedby legal specialists or may be adapted from standard contract forms.

The clauses in this section must set out all payments to which theContractor is to be entitled under the Contract. Many other clauses inthe contract may be claimed to give entitlement to some additionalpayment and, in order to avoid disputes or ambiguities on the subject,it is important to include a clause which states specifically thatpayment will be limited to the items set out in this section. There mustbe specific reference to the particular clause numbers providing forpayments and to alternative clauses which may provide for paymentin respect of early determination. A suitable draft for such a clausemight read—


The Contractor shall be entitled only to such payments set out inClauses…or in alternative Clauses…and…. This Clauseconstitutes a waiver by the Contractor of any claim for paymentor reimbursement in respect of any provision of any clause of theContract which may be alleged to be additional to or alternativeto the provisions of Clauses.....

The provisions for payment should be followed by clauses dealing withcontra-charges. These must relate to specific clauses in the Conditionswhich entitle the Employer to carry out work which the Contractorfails to do or where there is an obligation on the Contractor which willgive rise to additional cost to the Employer if the Contractor fails tocarry out that obligation. The number of these items is usually smalland comprises:

(a) liquidated damages for failure by the Contractor to complete thewhole or a specified part of the Works by the contract completiondate or an extended date if an extension of time is granted;

(b) the cost of action by the Employer resulting from failure of theContractor to carry out an instruction of the Engineer in goodtime;

(c) the cost to the Employer of remedying defects for which theContractor is liable and which he has failed to remedy in goodtime;

(d) the cost to the Employer of bankruptcy or liquidation of theContractor;

(e) costs arising from a breach of contract by the Contractor whichresults in determination of the Contract;

(f) the cost of any material, constructional plant or labour supplied tothe Contractor by the Employer.

In order to ensure that all these contra-charges are legally deductableit is usual to include a clause or paragraph permitting the Employerto deduct the appropriate sum from any payments due. A typicalclause would read—

Whenever under the Contract any sum of money shall berecoverable from or payable by the Contractor, such sum may bededucted from or reduced by the amount of any sum or sumsthen due or which at any time thereafter may become due to theContractor under or in respect of the Contract.

This provision is sometimes extended to cover payments due underother contracts with the Employer.


4.5.15Terms of Payment

This section is concerned with payments made by the Employer andtherefore falls within logic item F. The previous section was concernedwith the Contractor’s entitlement to payment; this section deals withthe times at which payments will be made, including provision foradvance payments before completion.

The draftsman must bear in mind, when drafting this section, thatthe Employer expects to pay the Contract Price when the Contractorhas completed the work and made good any defects; the payment of theContract Price is made when the final account has been agreed. Allother payments should be considered as advances by the Employer forwhich the Contractor must provide collateral in a similar manner tothe provision of collateral against a loan. In a construction contractthe collateral is usually in the form of:

(1) for an advance payment made before work has commenced or forthe purchase of plant or materials (including advances of this typemade during the course of the Contract), an unconditional bond orguarantee from a bank or insurance company; or

(2) work and materials which have passed into the ownership of theEmployer.

In practice, the only truly unconditional bond or guarantee is onewhich provides that the bank or insurance company shall repay theamount of the advance payment on the demand of the Employer andis usually referred to as an on-demand bond. This type of bond shouldnot be confused with a bond for due performance which may beprovided by the Contractor as a guarantee that he will properlycomplete the contract. On-demand bonds are usually drafted by thebank or insurance company issuing them, not by the contractdraftsman, but the wording has to be checked by the Engineer toensure that they are truly unconditional.

In many contracts, particularly international contracts forconstruction, provision is made for an advance payment at the time ofsigning the contract, this advance being intended to cover such itemsas the purchase and importation of plant and material. The advance isusually recovered from subsequent interim payments for work carriedout and the on-demand bond reduced accordingly, i.e. the collateralagainst the advance is transferred from the on-demand bond to workand material which has become the property of the Employer.Whenever initial advances of this type are made, the draftsman mustprovide a detailed recovery clause setting out the period over which the


advance will be recovered and the amount be recovered against eachsubsequent interim payment or by any other system of recovery.

In construction contracts and in other engineering contracts it isusual to make interim payments at regular intervals (commonlymonthly) or stage payments when specified stages of the work havebeen reached. The former method is usually adopted when the work ispaid for by detailed measurement; the latter method is commonlyapplied to lump sum contracts without detailed quantitymeasurement.

In this section of the Conditions the draftsman must set out fullparticulars of any measurement requirements for interim paymentsand particulars of when and how these payments will be made. Whereonly a few stage payments will be made, they may be set out in aclause in this section, but where a substantial number of stages are tobe included then it is usually more convenient to provide a separateschedule. A payments schedule is very convenient as anaccompaniment to a standard form of Conditions; it allows thedraftsman to provide for a wide variety of payments to suit particularcircumstances. Where stage payments are in respect of work which isnot on the site and which does not become the property of theEmployer, then it is common for them to be covered by an on-demandbond. Such bonds can be expensive (the bank may make a charge ofthe order of between 1½% and 2% of the value of the bond). To avoidthese costs various legal devices are adopted (instead of on-demandbonds) to ensure that work and materials not on the site become theproperty of the Employer and cannot be taken over by a liquidator orreceiver in bankruptcy. Such legal devices are not practicable ininternational contracts; even in the UK doubts have been expressedabout the applicability of such legal devices in Scotland.

Interim payments against the value of work and materials on thesite are not usually made up to the full value of such work andmaterials, the balance being retained by the Employer as a fund forthe remedy of possible defects or for other remedies under theContract. This retention may amount to between 3% and 10% of thesums concerned and must be clearly set out in this section of theConditions. Because of cash flow problems affecting contractors,provision is often made giving the Contractor the option of providingon-demand bonds as a substitute for the holding of retention monies.

Because prompt payment is fundamental to the contract, it isessential that all clauses concerning the terms of payment shouldstate when payment is to be made and should provide contractualsanctions if payment is not made in time. These contractual sanctionsare usually in the form of interest on late payments but may alsoinclude provisions whereby the Contractor may discontinue work if


payments are excessively late. Clauses embodying these provisionsmust be carefully balanced between the desire of the Employer not tobe tied down too tightly and the increased cost which will beincorporated in tenders if tendering contractors believe that there areinsufficient safeguards in respect of payments.

4.5.16Certificates

Generally, certificates given by the Engineer are in respect ofpayments and therefore fall within logic item F. However, certificatesare also required in respect of completion and for satisfaction of otherrequirements which fall within logic items D and E.

Most of the Employer’s liabilities are contingent upon theContractor carrying out his responsibilities. As the Employer is notresponsible directly for the administration of the contract (which iscarried out through the Engineer) he will, before accepting liability forpayment, require a document which will confirm the Contractor’sclaim to have carried out the contractual responsibilities. Thisdocument takes the form of an Engineer’s certificate; the clauses ofthis section must set out all the certificates to be provided andparticulars of the matters to be certified in each of them.

As certificates arise from the consequences of other Conditions, theclauses in this section ought to be based upon a review of all theprevious clauses of the Conditions. The certificate requirements fallinto four categories:—

(a) Payment certificates.(b) Completion certificates and maintenance certificates.(c) Certificates for extension of time for completion.(d) Certificates related to various remedies included in the

Conditions.

Clauses concerning payments certificates must define all the items tobe included, i.e. whether interim or final payment, any retentions, anyother deductions (such as repayment of advances) and any contra-charges. In order to be able to certify the amount due, previouspayments must be deducted from total value (less deductions, etc.). Asthe Engineer is not usually aware of the actual payments made by theEmployer, the certificate must be based upon deduction of the total ofprevious certificates; this should be stated in the appropriate clauses.

Completion and maintenance certificates give the Employer anentitlement to use the Works and, in the latter case, to exclude theContractor from the land forming the Site. They also usually entitle


the Contractor to further payments which have to be the subject ofseparate certificates to be given within a specified time of thecompletion or maintenance certificates.

Where the contract makes provision for extension of theconstruction period if particular specified circumstances arise, theEngineer must provide a certificate setting out the amount of theextension and the reason for it. It is most important that thiscertificate should give reasons; a particular incident may give rise to anumber of claims for extension on different grounds and the parties tothe contract require to know which of the grounds for extensioncomply with the contract and what extension is granted in respect ofeach. It is usual to include in such certificates the revised date forcompletion and it is worthwhile drafting this requirement into theappropriate clauses to ensure that the extended period is clearlydefined.

Whether any certificates are required in connection with thevarious remedies which are prescribed, depends on the drafting of theConditions and must be the subject of a review of the appropriateparts of the Conditions. In many cases the alternative is aninstruction from the Engineer to the Contractor, but there may be arequirement for the Engineer to certify if the Contractor has failed tocarry out the instructions; the draftsman must check this against theother requirements and draft accordingly.

Certificates for payment and in respect of completion andmaintenance always require an application by the Contractor; theclauses concerning the certificates must be drafted accordingly. Theclauses for certificates of extension of time should also provide for aclaim by the Contractor, but may provide that the Engineer can grantan extension in the absence of a claim by the Contractor or in theabsence of specific evidence from the Contractor, in order to safeguardthe Employer against circumstances which might make it difficult forhim to fulfil his responsibilities if the completion period is notextended.

Certificates in respect of various remedies may not depend onclaims by the Contractor. The requirements will have to beascertained specifically in each case in the course of drafting theseclauses.

In many contracts a limitation is placed upon the time available forcertification by the Engineer after receipt of a claim from theContractor, subject to the Contractor providing the whole of theinformation required for certification. This is a reasonable provision(particularly in the case of payment certificates) to ensure that thereis no excessive delay caused by the Engineer. The draftsman must


ensure that the Engineer will not be held responsible if the Contractordoes not give the necessary information in time.

4.5.17Settlement of Disputes

Settlement of disputes represents item G of the fundamental logic andis an essential complement to the provisions setting out theresponsibilities of the Contractor and the duties of and the paymentsto be made by the Employer.

Apart from legal action, there are three alternative methods for thesettlement of disputes that are available for use on engineeringcontracts. They are:—

(1) Arbitration.(2) Expert award.(3) Conciliation.

Although it is rare for any contract to include all three methods, thereis no reason why the section should not provide for each of the threemethods to be used for the purposes for which they are best suited.

When drafting the disputes clauses it should be borne in mind thatin an engineering contract the parties expect any procedure to providethe best commercial advantage coupled with the lowest cost of theprocedure. In many cases, if the procedure is unduly expensive it willnot be worthwhile making use of it and the Contractor could be forcedto accept an unreasonable judgement by the Engineer or theEmployer.

The commonest procedure provided in the standard forms isArbitration. In UK Conditions it is usual to provide for a singlearbitrator agreed by the parties or appointed by the President of anengineering Institution. Elsewhere it is common to provide for avariety of alternatives of two or more arbitrators and/or umpires. Thetechnical and legal requirements for arbitration are dealt with in theclauses of the standard forms; the draftsman should be familiar withthose clauses and should ensure that those technical and legalrequirements are provided for.

The cost of legal representation at arbitration hearings is often themajor part of the cost of arbitration. Verbal evidence and cross-examination are part of the tradition of legal tribunals. The eventswhich give rise to engineering disputes have generally taken place ata much earlier date and oral evidence by the participants is usuallybased upon their diaries and reports or other documents which theyhave used to refresh their memories; in the circumstances, oral


evidence is often a test of the memory of the witness and of the skill ofopposing Counsel in throwing doubt upon the evidence in cross-examination. In many cases, engineering arbitration can beundertaken on the basis of documents only, including therepresentations of the parties (called “pleadings”), the replies to theserepresentations, and written evidence. Draftsmen should considerincluding in any arbitration clause a requirement that arbitrationshould be carried out on the basis of documents unless the arbitratoror the parties require verbal elucidation.

One of the most useful documents when drafting arbitration clausesis the Institution of Civil Engineers Arbitration Procedure, which setsout clearly the necessary steps to be taken and also provides for ashort procedure which substantially represents arbitration on thebasis of documents and is worthwhile adopting generally. Althoughthe Arbitration Procedure was drafted in connection with civilengineering arbitration, the provisions in it are not specific to civilengineering and are applicable to all branches of engineering.

In the ICE Arbitration Procedure there is a special procedure forexperts. In this the experts from both sides prepare reports and thenmeet the arbitrator and present their case and the questions whichthey have in connection with other experts’ opinion. It is intended fordealing with disputes in which there is a substantial difference ofexpert opinion on the subjects concerned and where this forms a majorpart of the dispute. It is an arbitration procedure and is not to beconfused with the settlement of disputes by an expert.

There are many disputes where the parties are not dividedsubstantially on matters of principle but cannot agree upon how costsare to be evaluated and upon the total quantum of costs and otheritems. Such a dispute can be most conveniently settled by theappointment of an expert acceptable to both parties, who will bepermitted to examine all the files of the parties and who willdetermine the cost and other quantity items attributable to each ofthe parties. Such a determination must be accepted as binding by theparties and must be drafted accordingly. This procedure can also beused for determination of whether the quality of the product meets therequirements of the contract. It can be extended to determine thequantitative aspects of alternatives which may be themselvessubmitted to arbitration. It is worthwhile including a clause for expertdetermination of disputes in contracts where the method of costingvariations ordered by the engineer cannot be easily defined.

A cheap procedure which is currently being developed, particularlyfor small contracts, is the use of Conciliation. In this procedure theparties meet a conciliator who may be chosen by them, but is morecommonly appointed by a professional or trade organisation. The


parties put their cases to the conciliator who may suggest alternativecompromise settlements which may be acceptable to both parties. Thisis followed by a report from the conciliator proposing a specificsettlement; it is obviously advantageous for such recommendedsettlements to have already been accepted by the parties. The ICE hasnow published ‘Conciliation Procedure 1988’ which is applicable tomost engineering contracts and it is worthwhile providing for the useof the Procedure when drafting a conciliation clause. Such a clausemay also provide that arbitration shall only proceed if conciliationfails.

4.6Other Sections and the Practical Application of the

Fundamental Logic

The sectional headings for construction contracts given in the table (inPart 4.3 above) cannot be expected to deal with every aspect whichmay arise in construction contracts. Additional sections will have to beincluded to deal with the contract requirements for particular types ofwork; useful lists of sections which may assist the draftsman areincluded as Parts 2 of the FIDIC Conditions, but even these cannot becomprehensive. An example of an additional clause specific to aparticular type of work which is not listed in the FIDIC Conditions isthe provision usually made in highway contracts for the specialrequirements of Statutory Undertakers. On the other hand, manytypes of contract may require the omission of some sections describedfor construction contracts and the substitution of others not listed.


130

CHAPTER 5Specifications

5.1Purpose of Specification

The Conditions of Contract are often referred to as “GeneralConditions of Contract”. This description refers to their applicabilityto a large number of contracts of the type for which the GeneralConditions were drafted, rather than to dealing with the generalaspects of the Contract. It is rare for Conditions of Contract to bedrafted specifically for a particular contract; usually a standard orsemi-standard document is modified by amendments and additionsdrafted to suit the particular needs.

As pointed out in Chapter 4, the Conditions of Contract areconcerned primarily with the relations between the parties and onlysecondarily with technical matters; technical and general mattersspecific to the contract are dealt with in the Specification. However,there is no fundamental reason why the Conditions of Contract shouldnot also deal with specific general and technical matters: it is merely amatter of convenience that has resulted in this practice. The practiceis enhanced by the availability of standard forms of Conditions ofContract applicable to a wide range of engineering work (civilengineering, mechanical and electrical, chemical, etc.) and whichprovide for a separate Specification to deal with specific general andtechnical requirements of each contract, thus crystallizing thepractice. If one takes the fundamentalist view that the contractconsists of a single document applicable to all aspects, theSpecification would be written as an extension of or a part of theConditions of Contract and the whole document merely referred to asthe Contract. A compromise on this view was adopted by thechief engineer of a New Town corporation who required specificationclauses to be numbered as a continuation of the clause numbering theConditions of Contract, although the Specification formed a separatedocument.

In the fundamental logic of the Conditions of Contract (described inChapter 4, Part 4.2), the Specification forms part of Item C—Description of Works, and would be referred to in this context by crossreference. The other documents which describe the Works are thedrawings and the Bills of Quantities (where they form part of thecontract). Generally, the purpose of the Specification is to describethose aspects of the Works which can be put into words in a clear andrelatively concise manner, whereas the drawings describe thedimensions and form and components of the work and their spatialrelationships. Where a Bill of Quantities is included in the contractthis merely quantifies the extent of the Works described in theSpecification and drawings, in addition to its role in defining Item F—Payments by the Employer, in the fundamental logic of the Conditionsof Contract.

Considered in its broadest aspects, the “Description of Works” mustinclude provision for checking that the Works have been properlycarried out as well as a means of describing their final extent (aftercompletion and payment), as distinct from the initial extent describedin the Specificatiion and the drawings. The Description must,therefore, include every aspect of supervising and administering thecarrying out of the Works. In the case of work which is mainlymanufacturing, the provisions in the Specification for administeringand supervising may be limited to little more than inspection andtesting by the Engineer. In the case of contracts involving a largeelement of site work (such as construction contracts) the Specificationmay require an extensive general section setting out the informationthat the Contractor must supply and the provision which must bemade for detailed supervision by the Engineer’s site staff. It might beconsidered that many administrative clauses which are included inspecifications could form part of the Conditions; with the extensiveuse of standard forms of Conditions the detailed aspects ofadministrative clauses may be applicable only to the particularcontract and are therefore better dealt with in the Specification.

5.2Types of Specification

Because of the variety of work which may be the subject of anengineering specification these vary widely in form and content.However, three basic forms can be identified, related to the basicrequirements of the contract. These specification types dealrespectively with:


(a) the definition of the duty required for the various items in thecontract as well as the tests required to confirm that the duty hasbeen met;

(b) design, materials, and workmanship requirements for a contractorto carry out design and construction of the project;

(c) materials, workmanship, and construction or manufacturingrequirements where the contractor constructs or manufactures tothe Employer’s (or his consultant’s) design.

Large contracts may require a specification which combines two of thethree types, e.g. a design and build specification may incorporaterequirements for the duty of many of the items, or a contract forconstruction to the Employer’s design may include a design and buildsection to be carried out by a nominated sub-contractor.

A duty specification type is usually adopted for the supply ofstandard or semi-standard manufactured items, often combined witherection in an existing plant or as part of a design and build contract.A typical example would be a contract for a diesel generator for whichthe Specification would define the duty of the generator and ofsubsidiary items and would set out the facilities which would be givenfor erection, as well as the facilities to be provided by the Contractorand the tests which would be carried out to determine that theequipment met the specified duties. The Contractor’s tender for suchan item would incorporate a detailed description of the plant to besupplied. It is more usual for such items to form part of a largercontract for design and construction of a manufacturing plant, thediesel generator forming part of a sub-contract for supply and erection.Although duty specifications can be relatively simple, the draftsmanmust ensure that all related matters are dealt with, such as provisionfor transport, for storage and handling at the site where erection is totake place, for connection to existing utilities and many other pointsof a similar character which are necessary to ensure that the Worksare fully described.

The Specification for a design and build contract is perhaps themost difficult to draft. Unless the requirements and the quality of thevarious parts of the Works are fully defined, the Contractor is boundto supply and construct the cheapest available. This is unlikely to beadvantageous to the Employer in terms of reliability and maintenance.Moreover, there are often a wide variety of alternatives for design andconstruction available to the Contractor; the Specification must setout design requirements and codes as well as materials andworkmanship requirements which will cover all these alternatives. Inaddition, the Specification must fully define the site and the facilitiesavailable there, provide for design and construction supervision

SPECIFICATIONS 133

(including detailed checking if required by the Employer), inspectionand testing in any offsite facilities, and final testing at the site toensure that the Works are acceptable when completed. Where themajority of the work is to be carried out in the Contractors’ factory oryard (such as in shipbuilding), design and build contracts are verycommon and often require that the Contractor provides extensivefacilities on his own premises for supervision by the Engineer. Wherethe majority of work is carried out on the Employer’s site, thencontracts for construction to the Employer’s design are more common;this is the case in most civil engineering contracts, although theremay also be substantial elements of design by the Contractor.

Design by the Employer’s consulting engineer is commonest in civilengineering and building work, although it is also used in heavymechanical work where special designs are required for work forwhich manufacturers do not have special designs or expertise. Where,as in civil engineering, the majority of the work is carried out at thesite, this is equivalent to setting up a complete factory for the purposeof carrying out the Works. The Specification then requires extensivegeneral and administration clauses to deal with problems arising fromthis “factory” on the site, this being the function of the general sectionof the Specification. In addition, the engineer (as the designer) is ableto specify those requirements for materials and for workmanship andfor factors governing methods of construction which will enable thedesign to be fully realised. Even in this type of contract the Contractormay offer an alternative design for some parts of the work; in such acase it is common for the alternative design to be taken over by theEmployer or his consulting engineer who must then add to thedocumentation, including specifying any changes in materials andworkmanship as well as the limitations on construction methodsneeded to ensure satisfactory completion.

5.3Logical Arrangement of Specifications

Because the relationships between the parties to an engineeringcontract are reasonably similar for a wide variety of contracts, it ispossible to postulate a fundamental logic for the Conditions ofContract which is applicable to most contracts. The types of workwhich may be the subject of different specifications will vary so widelythat it is not possible to postulate a common fundamental logic; thelogical arrangement will have to be fitted to the nature and purpose ofthe particular specification.

Comprehensive coverage of all the detailed requirements of thework is an obvious fundamental requirement for drafting engineering


documents. In the drafting of a specification this is achieved by acombination of engineering experience and of a logical application ofthat experience in drafting.

The engineering experience does not have to be the personalexperience of the draftsman. It may be derived from the experiencesof one or more colleagues or from the records of organisationsresponsible for preparing the contract or it may derive from the adviceof consultants or from published or other papers on research,construction or manufacturing. For specification writing it isimportant to be aware of all the practical and theoretical problemswhich may arise in each item or operation; when the information isderived from sources such as publications or reports, then thedraftsman is likely to require wider engineering experience to fill inthe obvious and practical gaps which necessarily arise from inabilityto question the authors.

The purpose of the logic is to enable the draftsman to examine theexperience and information in an order which will disclose any gapsand to prepare a drafting arrangement which comprehensively coversall the operations and requirements. The logical method will vary withthe type of work concerned and may differ in different parts of thedocuments. As an example, the most useful logical method in aconstruction contract would be to examine the requirements of thework in the order of construction operations. In this way, an engineerwho is familiar with the construction methods involved will be able toexamine each of the construction operations consecutively and specifythe particular requirements to suit the site, the design and thecontract provisions for the work. This detailed examination byconsecutive operations will minimise the risk of omission of animportant provision because the specification writer should, by thismeans, be able to visualise the complete process of construction frombeginning to end and thus to identify every operation. In the case ofmanufacturing or fabricating operations, a similar view based upon anexamination of the consecutive operations required in manufacturingor fabricating, will provide the appropriate logic for specifyingnecessary provisions.

A specification based upon the duties of the various items oftenpresents greater logical difficulties because, although these duties canbe identified by consideration of the modes of operation, there areoften considerations related to maintenance, life and appearancewhich are not obvious from a simple examination of modes ofoperation and which require further consideration in relation tomaintenance and damage limitation as well as of appearance andpsychological effect on operators.

SPECIFICATIONS 135

As an example, the application of the logical method to aspecification for a bridge would first identify the order of constructionof the various parts as:—

Demolition and site clearance.Excavation.Construction of foundations.Piers and abutments and wing walls.Filling around foundations, piers, abutments and wing walls.Bearings.Deck beams and slabs.Parapets and other fixtures.Waterproofing deck and deck finishes.

Each of these parts would then be examined in turn on the basis of thesequence of the operation required for construction. Thus, for example,all the likely methods of excavation would be considered, in the orderin which they would be carried out, so as to make provision for:—

(a) Any special requirement to avoid damaging the bearing capacityof the ground.

(b) Special requirements concerning dewatering of the ground.(c) If any part of the excavation is in a watercourse, requirements for

cofferdamming such as depth of sheet piling, minimum height oftop of cofferdam, provision in case of flooding, etc.

(d) Examination of completed excavations to confirm that they aresatisfactory before further operations are commenced, includingprovision in case of deterioration.

In the actual drafting of such specifications, many more operationsare likely to be considered. These would arise from special problemssuch as proximity to railways or roads or other structures requiringspecial precautions. The draftsman will have to decide the particularlogical method to be adopted in each case to provide consecutiveconsideration of operations or items in a manner which will minimisethe risk of omission of any likely items or operations.

A specification is not intended to be a list or description of operationsor items. In principle, a contractor is entitled to carry out the work inany way which he considers suitable. The specification is intended toprovide limitations to the methods, materials and workmanshipadopted by the Contractor, either by laying down particular methodsor materials or workmanship or by limiting the use of particularmethods etc. By a logical examination of each operation or item inturn it is possible to identify limitations necessary to ensure that the


design requirements are achieved with reasonable economy andsafety.

5.4Specification Framework

As with other documents, when drafting specifications it is essentialto prepare a framework of section headings and clause headingswithin which the detailed drafting will be carried out. Such aframework should be comprehensive and prepared on the basis of thedesign and constructional and manufacturing requirements, arrangedin a logical order.

The provisions of a specification can be sub-divided into four maingroups:—

General requirements, including administrative provisions.Materials.Workmanship.Special requirements for duty or manufacturing or

construction.

Many specifications are drafted using these groups as the mainsection headings, with sub-sections for different materials and fordifferent types of workmanship. In many cases materials andworkmanship are not separated, i.e. workmanship applicable toparticular materials follows immediately after the requirements forthe material concerned. However, the groups listed above representthe types of provision required and do not necessarily, of themselves,form a suitable basis for the drafting framework. Although the“General” group will form a suitable separate section, the other groupsmerely represent the type of content which must be included withinthe sectional framework. In addition, where the Contractor is requiredto provide a substantial design element, it may be necessary toprovide a separate section setting out his design responsibilities.

Most organisations preparing engineering contracts have standardspecification clauses for materials and workmanship for the classes ofwork with which they deal, but these have to be modified to suit therequirements of each contract, e.g. if the clauses have been written foruse in temperate climates they may require substantial modificationfor work in tropical climates. Although a specification may contain asection dealing with materials and workmanship, there maynevertheless be a need for further materials and workmanship clausesto be included in the special requirements group. These would dealwith work which is applicable to only part of the contract work and

SPECIFICATIONS 137

are best related to the description of the requirements of that part ofthe work. For example, there may be clauses concerning the generalrequirements for fabrication of steel frameworks, but there may alsobe special requirements for fabrication of a particular part of astructure and this may most conveniently be dealt with in the specialrequirements for that particular part of the structure.

When preparing the drafting framework, Sections can often be mostconveniently arranged according to the operations which have to becarried out in the course of the work, each Section dealing withmaterials, workmanship and special requirements of a particularoperation or group of operations. Another arrangement, where theSpecification is mainly concerned with duties of various mechanical orelectrical parts, is for each Section to deal with a particularmechanical or electrical item, the various clauses within each sectionbeing concerned with the duties of the particular items referred to, aswell as setting out the limitations on materials and workmanshipneeded to ensure that manufactured items are acceptable. Typicalsingle operations which would be the subject of separate sectionswould be, for example, piling, dredging, steel fabrication, lift supplyand erection, switchgear, etc. This arrangement is particularly usefulfor standard specifications which are intended to be incorporated inthe contract with amendments related to the specific contract works.

The art of drafting comprehensive and practical specificationsdepends to a large extent upon the draftsman’s competence inpreparing comprehensive and logical frameworks for each contract.Even where the framework of a standard specification is adopted, it isessential that it be modified to provide the framework for theindividual contract; standard forms of specification cannot be expectedto comprehensively cover all the requirements of any particularcontract and a failure to prepare a specific framework in each casemay well result in a serious omission.

The following example illustrates the development of the frameworkof an actual specification which was written for the machineryrequired for operating a large river control structure. The specificationwas divided into four sections followed by appendices which consistedof schedules of information and requirements. Three of the sectionshave been divided into sub-sections to enable requirements forparticular parts of the work to be grouped together. The frameworkadopted for sections and sub-sections was:—


Sampling, Testing and InspectionSteel and IronworkPaint

SECTION 3— TRADES

Standards and TolerancesStructural SteelworkWeldingGalvanisingProtective Systems

SECTION 4— PARTICULARS OF THE WORKS

Extent of Works and Contractor’s Responsibilities.General Description and Requirements.Machinery for Large Gates.Machinery for Small Gates.Hydraulic System.Electrical Systems.

APPENDICES

Special Instructions for Delivery, Erection and Installation of Plant.Schedule of Drawings and Information to be Supplied by the

Contractor.Key Sections and Dates and Other Programme Information.Schedule of Tests to be Carried Out at Manufacturers’ Premises.Schedule of Tests to Be Carried out at SiteSchedule of Controls, Interlocks, Indications and Alarms.Each of the sub-sections consisted of a number of clauses detailing

the requirements of that sub-section, resulting in a documentconsisting of approximately three hundred clauses, in addition to theclauses and schedules in the Appendices. It would be impractical toreproduce the full list of clauses and to discuss them here, but theclauses comprising the sub-section for Electrical Systems in Section 4illustrate the development of sub-sections to form a clause frameworkas follows:—

Electrical Systems.4.101 General Description.4.102 Extent of Works.4.103 Work Produced by Others.4.104 Drilling of Steelwork and Fixings.4.105 Materials and Workmanship.4.106 Interchangeability.4.107 Enclosures of Electrical Equipment.

SPECIFICATIONS 139

SECTION 1— GENERAL

SECTION 2— MATERIALS

Standards

4.108 Protective Finishes.4.109 System Voltages.4.110 Electric Motors.4.111 Fuse Switches and Isolators.4.112 Contactors.4.113 Distribution Fuseboards.4.114 Fuses.4.115 Cable Types.4.116 Installation of Cables.4.117 Cable Glands.4.118 Cable Trays.4.119 Conduit and Conduit Fittings.4.120 Cable Trunking.4.121 Control Systems.4.122 Control Panels.4.123 Pressure Transmitters and Indicators.4.124 Control Supply Units.4.125 Gate Position Indicators.4.126 Limit Switches.4.127 Relays.4.128 Control Terminations.4.129 Earthing.Although the clause headings of the various sub-sections (other than

Electrical Systems) have not been given in the framework above, twoclauses in the General section need to be mentioned, namely“Purpose of Works” and “General Description of Works” as well as thefirst clause in the “Hydraulics System” sub-section which is entitled“Contractor’s Responsibilities”. In Section 4— Particulars of theWorks, there are sub-sections dealing with “Extent of Works andContractors Responsibilities” and with “General Description andRequirements”. In addition, it will be seen that there are, in the sub-section “Electrical Systems”, two clauses under the headings “4.101General Description” and “4.102 Extent of Works”, as well as theclauses referred to in the General section and in the Hydraulic systemsub-section. These sub-sections and clauses are not repetitions of oneanother; they constitute a progression from the general requirementsto particular requirements for a limited part of the work. Thus, theclause at the beginning of Section 1 entitled “General Description ofWorks” gives a general picture of the whole of the Works, but the sub-section in Section 4 entitled “Extent of Works and ContractorsResponsibilities” and the sub-section entitled “General Descriptionand Requirements” give specific details of the various items of workand the responsibilities to be undertaken by the Contractor for allitems. The description of the Contractor’s responsibilities and the


requirements given in these sub-sections are broad and are amplified,where required, in particular clauses. In addition, in specialised sub-sections (such as “Hydraulic System” and “Electrical Systems”)further detailed descriptions appropriate to those specialities aregiven.

This arrangement and sub-division is part of the logic of this largespecification covering a wide variety of mechanical and electrical work;it assists comprehension by specialists, as well as sub-division of thedrafting work so that a team of engineers can carry out the draftingunder the supervision of the engineer responsible for the whole of thedrafting work. The sub-sections also assist the preparation of sub-contract documents by the Contractor, by segregating specialitieswhich are likely to be the subject of sub-contracts.

A similar logic is apparent in the drafting of clauses dealing withmaterials and workmanship. The clauses of the sub-section dealingwith particular requirements include materials and workmanshipwhich are additional to the clauses in Sections 2 and 3, although,where necessary, they cross refer to those Sections. These materialsand workmanship clauses (in particular sub-sections) provide detailedrequirements for a limited number of operations, unlike those ofSections 2 and 3 which deal with operations generally requiredthroughout the Works, i.e. in the earlier parts of the Specification thegeneral requirements have been dealt with, while in the latter part ofthe Specification particular special requirements are given. Thus, inaddition to a logic related to order of construction which applies to theclauses in particular sub-sections, there is also a logic runningthrough the whole of the Specification commencing with the generalrequirements in the early parts and proceeding to the particularrequirements in clauses in the latter part of the Specification.

The clauses of the Electrical Systems sub-section have been shownwith their original numbers as an illustration of a particular systemof numbering. This system, which gives the clauses a prefix numberrelated to the Section, enables the contents list to be sub-divided forease of reference in a long specification, each of the sectional contentslists being placed at the beginning of the relevant section rather thanat the beginning of the Specification. This arrangement is, of course,only useful for large documents where the sub-division assistsreferencing, particularly in the finding of specialist items.

5.5Standard Specifications

A knowledge of available standard specification clauses is essential tothe specification writer. It allows him to concentrate his efforts on

SPECIFICATIONS 141

particular and non-standard requirements. At the very least standardclauses act as an aide-memoire, assisting in ensuring thecomprehensiveness of the detailed requirements. The uncritical use ofstandard clauses (particularly by those not familiar with the class ofwork concerned) can, however, give rise to serious errors concerningthe applicability of the requirements to the particular job in hand.Problems also arise from inapplicable references or cross references toother clauses; such references and cross-references must be checked toensure that they are applicable to the specification which is beingwritten. It is essential that the draftsman be familiar with the clauseor have recently read it in detail, so that he can amend anyrequirements or references. Even those who are continually usingparticular clauses may often find (generally during proof reading) thatthey have overlooked some reference or cross-reference when copyinga familiar clause.

We may recognise four distinct types of standard specification:—

(a) “Company” standard specifications and clauses.(b) National standard contract specifications issued by government

departments or by national industrial or professional co-ordinating organisations.

(c) Specifications prepared by national standards organisations suchas British Standards.

(d) Codes of Practice prepared by national standards organisations orby professional or industrial co-ordinating organisations.

Many large industrial and professional organisations (not necessarily“companies” in the legal sense) have standard specifications for someof the types of work carried out or specified by them. These companyspecifications are intended to standardise corresponding Sections ofcontract specifications and are usually appended to the Specificationsand introduced by reference. However, in many instances they mayneed to be amended or overridden by particular requirements and,unless the work is to be absolutely standard, they should beintroduced by a clause which states—

Except as otherwise provided in this Specification.......shall be inaccordance with Standard Specification Number….annexedhereto.

Alternatively, where the amendments to the Standards can besuccinctly stated, then they may be listed in a clause drafted as follows—


…shall be in accordance with Standard Specification Number…annexed, subject to the following amendments and additions:—

This type of standard specification is common among processcontractors, particularly in the oil industry, for such items assteelwork, ladders, stairways, and other items which repeat from plantto plant; it is often accompanied by standard drawings.

A common type of standard used by both large and smallorganisations, consists of general clauses and clauses for materialsand workmanship which are intended to be incorporated inSpecifications according to the requirements of the particular workconcerned, rather than annexed as a whole. Often the standardconsists of clauses carried over from previous specifications (which aretreated as standard) rather than being a separate formal standarddocument. The method adopted in the past was to “cut and paste” thestandard clauses which have been selected for incorporation, insertingnew material and amendments in the process, to produce a draftSpecification. With the advent of the word processor, the same processis carried out by transferring clauses from standard discs or fromdiscs of previous specifications and incorporating new and amendedmaterial after the transfer. The word processor has the advantagethat a large proportion of the specification will be printed out withoutfurther typing, thus avoiding considerable amounts of copy typing andconsequent typographical errors. It is, however, important to proofread the whole of the typescript (i.e. both the unamended typescriptand the amendments and additional matter) to ensure that theclauses read satisfactorily in their amended form and also to weed outor correct any inappropriate references or other unsatisfactory matterwhich may have been overlooked in the original compilation from thestandard clauses. Draftsmen of engineering documents are often underpressure to meet a deadline. If the period available for drafting is veryshort then there is sometimes a tendency to save time by avoidingproof reading of standard clauses; it cannot be overemphasised thatsuch procedure is fraught with serious dangers.

National standard contract specifications published by governmentdepartments or national industrial or professional organisations arelimited in number and are mostly confined to construction work andto civil engineering in particular. Mechanical and electrical work,which deals more with manufactured items, relies for standardisationmainly upon British Standards and on the regulations made byspecialist bodies such as the Fire Offices Committee, Lloyds Rules,I.E.E. Regulations, and other similar regulations.

The best known national standard contract specifications areprobably the “Specification for Highway Works” (previously the

SPECIFICATIONS 143

“Specification for Road and Bridge Works”) issued by the Departmentof Transport and the “Civil Engineering specification for the waterindustry” originally published by the National Water Council andsubsequently republished by the successor to that Council. Examplesof other national standard contract specifications are the PilingSpecifications issued by the Institution of Civil Engineers, and theNational Building Specification which is privately published. Thereare also national specifications used by organisations such as BritishTelecom. These are not generally published, but copies are availableto engineers carrying out work which is subsequently to be used bythe organisation although it does not form part of one of theircontracts.

The distinguishing feature of all these national standard contractspecifications is that they are intended to be used as a whole to formthe Specification, subject to amendment and addition and to theautomatic omission of clauses which are not applicable. They are alsonormally incorporated by reference (in a similar manner to standardConditions of Contract), the actual document not being reproduced inthe contract documents. The Department of Transport also provides astandard clause for incorporation of the Specification for HighwayWorks by reference, which provides for substituted and additionalclauses. A similar clause can be used for the incorporation byreference of other national standard specifications.

The national standard contract specifications are drafted to formpart of the contract and they, therefore, include the necessary contractreferences and contractual requirements, including cross references tospecific Conditions. If they are to be used with other Conditions thenthey require amendment of the cross references and of other clauseswhich may not be compatible with the Conditions of the contractconcerned. British Standard Specifications (B.S.’s), on the other hand,do not contain the contractual clauses; each B.S. has a disclaimerwhich states that it “does not purport to include all the necessaryprovisions of a contract”. Most British Standards deal withrequirements for material, processes and/or testing for specific itemswhich may be required for inclusion in various engineering works andare intended to be included in the contract specification by referenceto the standard number, date and title.

A typical reference to a British Standard (taken from an existingcontract specification) reads “Hydraulic piping shall be Cold DrawnSeamless in accordance with B.S. 778-Steel pipes and steel forhydraulic purposes”. The text of this reference gives no date for theBritish Standard; although dates for Standards are often inserted inthe text of specifications, it is common for them to be dealt with eitherby appending a list of Standards with their dates, at the end of the


Specification (as in the Specification for Highway Works),or byinserting a clause in the General section under the general heading ofMaterials, in the following form—

Except where otherwise specified or authorised by the Engineerall materials and workmanship shall conform to the latestedition of the relevant British Standards Specification.

These alternative methods of dating are used because so manyspecifications are based upon company or national standardspecifications which avoid giving dates of B.S.’s so that provision canbe made in contract specification for the B.S. current at the time of thecontract. Whichever of the foregoing drafting methods is adopted, thedates of the applicable editions of the British Standards is part of thedetailed description of the Works and apply at the date of enteringinto the contract (in some cases the date of tender may be the datewhich applies to the edition of British Standards). If any B.S. isrevised during the course of the contract, then the Engineer will haveto issue a variation order if the work is to be constructed in accordancewith the revised B.S. In specifications where reference is made to the“latest edition”, the draftsman must check that provisions of suchlatest editions do not contradict or make a nonsense of the provisionsof the specification. An example of this is B.S.1377-Methods of TestingSoils for Civil Engineering Purposes, where the various tests arenumbered, but in which the test numbers have been changed insubsequent editions. In consequence, reference to a test by its numberin B.S.1377 (a common method in specifications for earthworks) maybe incorrect or even nonsensical in respect of a later edition of thisStandard.

Many British Standards include alternatives of quality, method,dimension or other properties, which have to be stated in the contractspecification; omitting reference to such alternatives may result inserious ambiguity or may even make a nonsense of some of thespecification provisions. It is, therefore, essential that the Standardsbe read and checked, to ensure that the appropriate alternative isincluded in the contract specification. In some specifications anattempt is made to overcome this problem by inserting a clause on thelines of the following—

Where any Standard Specification provides for alternatives andno reference is made in this Speciification or on the Drawings tothe alternative required by the Works, then the Contractor shallrequest the Engineer to issue an instruction specifying theapplicable alternative. If such instruction is not requested, then

SPECIFICATIONS 145

any resulting alterations subsequently required by the Engineerto materials and workmanship shall be at the Contractor’sexpense.

In principle, such a clause introduces ambiguities in the specification,and should only be considered as a backstop to assist in settlingomissions in specification drafting rather than to relieve thedraftsman of his responsibility to check the Standards which he hasspecified.

Although in UK contracts references are generally to BritishStandards, it is not uncommon for other national standards to be usedwhere they are more appropriate or more familiar to the audienceresponsible for carrying out the work. Thus, for work on processplants it is common to specify A.P.I. (American Petroleum Institute)or A.S.T.M. (American Society for Testing Materials) standards,despite the fact that in many cases British Standards are available forthe items. Similarly, on asphalt work many of the standards specifiedare A.S.T.M., while in some electronic work the appropriate standardmay be DIN (Deutsche Industrie Normen). When specifying suchstandards the draftsman should check that the measurement unitsused are compatible with other parts of the specification; US standardsare generally in modified imperial units while European standardsare generally in metric or in SI units. In international contracts,contractors are often permitted to offer alternative national standards,but this requires safeguards to ensure national equivalents; a suitableclause would be in the following form—

Other authoritative standards which ensure an equal or higherquality than the standards referred to in this Specification willbe accepted, at the Engineer’s discretion. Any such alternativestandard proposed by the Contractor shall be submitted in theEnglish language for approval by the Engineer.

British Standard Codes of Practice are generally concerned with rulesfor design, although they set out some requirements for materials andworkmanship. Existing Codes of Practice are being renumbered asBritish Standards as and when they are revised and new Codes arenumbered as B.S.’s. More recently Codes of Practice have beenpublished which deal with matters of safety and pollution control,suchas B.S.5228— Code of Practice for Noise Control on Construction andDemolition Sites and B.S.6164— Code of Practice for Safety inTunnelling in the Construction Industry. These safety and pollutioncodes represent agreed good industrial practice and should always bespecified where applicable. However, they do set out alternative


requirements applicable to working conditions and it is essential thatthe specification writer should state the requirements appropriate tothe contract works as well as other specific conditions which are to bemet. Such additional conditions are almost invariably required; as anexample, in connection with the use of B.S. 5228 (which should bespecified for all construction or erection works), it is necessary to statethe times during which various noise levels are permitted. Where acontract provides for the contractor to both design and construct theWorks, then the Codes of Practice for design will form an essentialpart of that section of the specification dealing with design but willneed to be supplemented by rules specific to particular Works.

5.6Manufacturer’s Specifications

Manufacturer’s specifications do not normally form part of contractdocumentation, although they are often referred to in connection withinstructions for the erection or use of manufactured items. However,manufacturer’s often possess specialist expertise in connection withthe products produced by them and, for this reason, parts of thedocumentation produced by them are often incorporated in contractspecification clauses. Moreover, a study of manufacturer’s literaturewill indicate the products which are available, and discussions withmanufacturers will indicate the variations on the standard productswhich can be produced. It is rarely worthwhile specifying a productwhich is not marketed unless it is considered essential to provide anexpensive one-off special for the purpose required.

Manufacturer’s specifications generally fall into three categories:—

(a) Descriptions and properties of the product.(b) Recommended clauses for use in contract specifications.(c) Instructions for use or erection of the product.

Although category (a) literature is written primarily for salespurposes, it often contains important information, not easily availablefrom other sources, relating to the type of product concerned. Theproperties given in the literature are often subject to qualificationsconcerning their applicability and it is, therefore, important toascertain from the manufacturer the nature of such qualificationsbefore adopting technical data for incorporation in the requirementsset out in the Specification. It is obviously preferable to specify aBritish Standard where this exists for the product but it must beborne in mind that British Standards generally represent the morecommonly available items and that many manufacturer’s have

SPECIFICATIONS 147

products whose properties extend beyond the provision of the BritishStandards or have useful properties not included in the Standard.When it is intended to use the product of a particular manufacturer,then it is preferable to negotiate terms for supply on a sub-contractbasis prior to letting the main contract and to nominate the productand manufacturer by incorporating terms of the negotiated contractas an appendix to the Specification at the time of tendering for the maincontract. Otherwise, where proprietary products are to beincorporated in the Works, the main contractor is given theopportunity of offering alternatives to the product which may benamed in the Specification; a typical clause for this purpose reads—

Where proprietary materials are referred to in this Specificationby the use of manufacturer’s or trade names, such descriptionsare intended to establish the type and quality of the materialsrequired. Unless specified by the use of the phrase ‘and no other’,equivalent materials or equipment of alternative manufacturemay be substituted if such equivalent materials or equipmentreceive the approval of the Engineer.

A practice sometimes adopted where a particular manufacturer’sproduct is desired, consists of specifying all the properties of theproduct, including certain properties not provided by othermanufacturers; such properties may be minor in character and areincluded to ensure that only one manufacturer is able to supply theitems concerned. This practice is to be deprecated as it gives an unfairadvantage to the manufacturer concerned and is not in the interestsof the Employer.

Manufacturers rarely appreciate the requirements which have to beincorporated in contracts and, in any case, they cannot be expected toknow the needs of a particular contract. They usually have sales andmarketing organisations intended to maintain and increase the salesof their products and, in this context, they often publish so-calledrecommended specification clauses, the primary purpose of which isthe inclusion of the name of their product in the documentation for acontract. Such recommended specification clauses (category (b)) mustbe treated with extreme caution; although they often contain usefultechnical data, it is rarely worthwhile incorporating the clauses aswritten. Where the particular product is to be specified, thespecification writer should draft the necessary clauses independently,although it may be useful to incorporate some of the technical datagiven in the manufacturer’s clauses.

Manufacturers are anxious to ensure that their products areproperly used and they normally issue instructions setting out the


methods of use which will give satisfactory results. These instructionsoften include technical information concerning the particular item,but the instructions and information are often not supplied until thegoods or the equipment have been purchased. It is usual for theSpecification to contain a clause which requires the Contractor to useor install proprietary items in accordance with the manufacturer’sinstructions. A typical clause would be—

Unless otherwise specified or directed by the Engineer, allproprietary materials, products or equipment incorporated in theWorks shall be used and fixed in accordance with themanufacturer’s instructions and recommendations.

5.7General Section

It was mentioned earlier in this chapter that there was no reason inprinciple why the General section on the specification could not formpart of the Conditions of Contract but that, because the clauses werespecific to the particular contract, it was more convenient when usingstandard forms of Conditions to include a General section in theSpecification. A large proportion of engineering contracts are eitherconcerned with construction projects or include erection. Where thework is limited to manufacturing or fabrication or where the provisionfor erection is limited to supplying specialist supervision for erectionby another contractor, or where (as in ship building) there are nostandard forms of Conditions, it may be worthwhile adding the fewgeneral, administrative and inspection clauses to the Conditions ofContract and thus limiting the Specification solely to a detaileddescription of the work and the technical provisions to be compliedwith.

The most comprehensive General section is required for thoseconstruction contracts which involve extensive site work. Althoughother types of contract work are likely to require a less extensiveGeneral section, the general clauses in them will merely represent aselection of the more extensive coverage required for constructionwork; the following paragraphs are, therefore, equally applicable toboth construction work and to the more limited requirements of othercontracts.

The General section of the Specification is primarily concerned withthe definition of the Works and of the Site and this must form thebasis for the logical framework for drafting. The fundamental logicalbasis consists of:—

SPECIFICATIONS 149

Detailed description of the Works.Definitions of the Site.Specific general requirements for design and construction.Administrative requirements.

For practical drafting some broadening of the logical basis will berequired and is likely to comprise the following items:—

(1) Description and extent of Works. (2) Description of the Site and its contents.(3) Site facilities to be provided by the Contractor.(4) Control of pollution and protective measures.

(5A) General requirements for design and checking.(5B) General requirements for construction and inspection.

(6) Reporting and programming.(7) Miscellaneous.

In addition, it is often desirable to provide a “Definitions clause” at thecommencement of the General section, to define particular terms usedthroughout the Specification. Where British Standard Glossariesdealing with the subject matter exist, it is worthwhile incorporatingtheir definitions. A suitable clause would read—

Unless otherwise defined in the Contract the definition oftechnical terms used in this Specification are those in B.S….–Glossary of .........terms.

Where definitions apply only to one section of the Specification, theymay be more conveniently provided at the commencement of thatsection and a general ‘Definitions’ clause may not be necessary.

The above items proposed for the logical basis are not intended assection or sub-section headings, but are groupings of clauses set out inan order which will assist the draftsman to ensure comprehensivecoverage. The requirements are discussed below.

5.7.1Description and Extent of Work

All engineering contracts require a detailed definition setting outwhat is included within the Works. This is most conveniently achievedby the inclusion of a clause entitled “Description and Extent of Works”at the commencement of a specification. This clause will usually


comprise three sub-clauses, the first giving a general description ofthe whole of the Works, the second giving general descriptions of eachof the items of work which are included within the Works and thethird listing the drawings which are attached to the contract orreferring to a schedule where they are listed (usually they are thedrawings referred to in the Tender). An example of a clause from oneof the contracts for construction of a chemical plant illustrates thetype of detail required and the general drafting provisions. Thecontract is concerned with work in the ground, but piling work isbeing carried out by another contractor. Other contractors willfabricate and erect the steel structures and supply the chemical plantitems, plant erection being by direct labour. The clause for the groundworks reads as follows—

1.0 Description and Extent of Works1.01

The Works consist of the construction complete of the roads,foundations and drainage for a chemical plant, including thefoundations for control rooms and switch rooms, but does notinclude piling which will be carried out by another contractor.

1.02

The Works generally comprise:

(a) reinforced concrete foundations for the chemical plant andassociated equipment;

(b) roads and paving;(c) foundations and ground floor of control and switchroom buildings,

including trenches and trench covers, but not including floorfinishes and special covers required for incorporating in such floorfinishes;

(d) underground drainage and other pipe systems;(e) earthworks required for forming bases and bund walls for storage

tanks;(f) earthworks and concrete pipe sleepers required for and in

connection with forming grade level pipe tracks;(g) excavation, backfilling and levelling of trenches for cables and

pipes laid or fixed by other contractors;(h) grouting up under plant and steelwork erected by other

contractors and attending upon plant erectors, all as instructed bythe Engineer;

(i) all protective and temporary works and other consequential workrequired for carrying out the foregoing;

(j) such further work as the Engineer may direct for the purpose ofconstruction, completion and maintenence of the Works.

SPECIFICATIONS 151

1.03

The Drawings which form part of the Tender are as follows:—

In order to ensure that the description of the Works is complete it isnecessary to include items of the Temporary Works and other itemswhich do not form part of the Permanent Works as well as anyadditional work which the Engineer may be entitled to order as avariation order. Items 1.02 (i) and (j) are included for this purpose;similar items are likely to be necessary in most contracts to ensurecompleteness of the definition.

The Department of Transport, in connection with their ModelForm of Contract for Highway Works, omit any clause describing theWorks, as it is contended that the Works are described fully by thedrawings. In the case of highway works the Department require thedrawings to be complete in all details at the time of tendering, butnevertheless there is often insufficient information to providedrawings for some of the items at that time. This problem would initself justify the inclusion of a Description clause. However, theDepartment requires that, at the time of tendering, a description ofthe Works (corresponding to the type of clause outlined above) beincluded in the Instructions to Tenderers. The Department merelyexcludes this clause from the formal contract, but does not rigidlyapply this to contracts for subsidiary works where a Descriptionclause may be essential. In general, engineering draftsmen areadvised to include a “Description and Extent of Works” clause in allcontracts except where only manufacturing is involved and thenecessary description is therefore covered by the specified duties.

5.7.2Description of Site

All contracts for work on construction sites or for erection orinstallation of plant, machinery or services require clauses describingthe site of the Works. The Conditions almost invariably define the Sitein a manner such that the area of the site is only that area providedby the Employer and does not include working areas provided by theContractor; the description of the Site in the Specification must not becontrary to the definition in the Conditions. Although a largeproportion of the sites for engineering work include working areas forthe Contractor, there are many contracts in which no such provision ismade and in which any additional area required for offices, stores,workshops or yards has to be provided by the Contractor. This appliesparticularly to highway contracts where the Site is usually whollyoccupied by the Works and the Contractor will usually have to rent or


acquire land locally to provide for his working areas. Any specialrequirements concerning such additional working area arranged by acontractor must be specifically written into the Specification, but rightof access for the Engineer does not usually require specific referenceas it will ordinarily be covered in the Conditions.

The site description will usually comprise three clauses as follows:—

Location and Extent of Site.Site Data.Site Access and Use.

The clause headed Location and Extent of Site will usually consist oftwo or more sub-clauses, the first dealing with location and statingthe position of the Site in terms which will enable it to be identified ona map when read in conjunction with the site location shown on theDrawings, thus—

The Site lies in the county of Somerset approximately…km. eastof ...... on the ...... Road.

The second sub-clause defines the extent of the site and may belimited to a statement such as—

The Site comprises the area shown hatched on the Site Plan onDrawing Number…

or, in more complicated cases, may consist of a list of numbered orlettered items preceded by the phrase—

The Site comprises:—.

The Site may consist of a number of areas, some of which can beshown on the drawings and others which may need to be describedbecause the precise boundary will have to be set out on site jointly bythe Engineer and the Contractor. On some areas the period of usagemay be limited; this must be clearly stated to avoid disputes. Theremay be other areas which have to be made available, for items such asconnection of services, where the precise location cannot be defineduntil existing underground services are uncovered. In other cases,such as work in a river, the boundary of the site within the river maybe subject to agreement with the Authority controlling the river, whomay not be willing to finalise the matter until full particulars,including the Contractor’s working methods and plant, are available;in such a case the area will have to be defined as being within the

SPECIFICATIONS 153

boundary to be agreed with that Authority.Where the contract is forinstallation of machinery or services, the Site boundaries may have tobe defined in terms of maintaining a minimum clearance from existingmachinery or other installations.

All these points and others which may define the site area must beset out in detail so that the Contractor is fully aware of the areaavailable to him for carrying out the work and can makearrangements to work within that area or to provide other workingareas if he considers this desirable and possible. It will also enable theEngineer to enforce any limitations of the period of availability or ofthe area of the various parts of the Site. Where, within the variousitems of the sub-clause defining the Site, the information ordescription needs to be extensive, the draftsman may find it moreconvenient to merely list the items and add further sub-clausesdefining them or providing additional information concerning them;such an arrangement will improve the readability of the document.

Conditions of Contract usually provide that the Contractor shall bedeemed to have inspected the Site and made himself fully aware of allmatters connected with it which may affect the carrying out of thework. In theory, therefore, the Contractor should be given noinformation concerning the Site other than the location and extentand should be expected to make all necessary enquiries beforeentering into a contract. In practice, the Employer is likely to have aconsiderable amount of information (concerning the Site) which theContractor requires for carrying out the work, and the contract willneed to be based upon this information. If the information is not madeavailable the result may be uneconomical working and higher cost orclaims by the Contractor that the matters concerned could notreasonably have been foreseen and that the Employer should be liablefor the additional cost concerned.

The best professional practice requires that all information orphysical data concerning the site which may affect the carrying out ofthe work should be made available to the Contractor and should beincluded within the contract in order to provide formal assurance thatthe Contractor is responsible for taking account of this information. Itis most important to make available the whole of the factualinformation or data in the possession of the Employer; partialinformation may prove misleading in certain circumstances (suchcircumstances often cannot be foreseen) and may give rise to a claimof misrepresentation. It is not necessary to provide information whichis publicly available, although it may be worthwhile drawing attentionto such availability or to require the Contractor to make enquirieswith a particular public authority. Interpretation of data should notbe provided; where such interpretation cannot be separated from


factual data, then attention should be drawn to the interpretation andit should be excluded from the contract. The Contractor mustinterpret the data in relation to his requirements and should not beable to claim that he had been misled by interpretations made by theEmployer or the Employer’s advisors. The information or data may begiven on the drawings and referred to in sub-clauses of the clause ‘SiteData’ or may be provided in other parts of the Specification and cross-referred to in ‘Site Data’ or, alternatively, the sub-clauses of thatclause may state where and when the data is available for inspection.

Where the site work to be carried out by the Contractor is limited toinstallation of machinery, plant or services, site data may consist onlyof descriptions of the site conditions under which work will be carriedout and the clause will be more appropriately titled “Description ofSite” or “Working Conditions at Site”. In the case of installation orerection work it is essential to state all matters which will affecterecting, i.e. whether the working floor will be concrete or other hardsurface, whether scaffolding will be available, whether cranage will beavailable and if so under what circumstances and at what times andany limitations of use, etc. The draftsman should bear in mind thatthe state of the structure when the installation is carried out may bedifferent from that at the time of tendering by the Contractor; theclause must obviously set out the specific conditions which will ariseduring installation.

On contracts involving substantial site works, the requirementsconcerning access to the Site and the Contractor’s use of the Site willentail sufficient drafting to justify an additional clause entitled ‘SiteAccess and Use’. Where requirements are simple, perhaps amountingonly to “Access to the site shall be only through the gate on…Street”,such requirement can be incorporated as a sub-clause in the Site DataClause or (where the requirements are so limited as not to justify aSite Data clause), incorporated in the clause ‘Location and Extent ofSite’. Requirements and limitations on access and use can vary widelywith different types of work and different sites. The subject requirescareful analysis to ensure a balance between economy and necessarylimitations to safeguard the parties to the contract. Some of theimportant questions which the draftsman must consider are:—

(a) Should there be limitations on the Contractor’s routes to the Sitein order to avoid undesirable disturbance.

(b) In consequence, should there be limitations on the number and/orposition of access points.

(c) What provision is to be made for car parks for Contractor’semployees and should it be a condition that they shall not park onroads surrounding the Site.

SPECIFICATIONS 155

(d) Where the Site is in more than one area (such as in an existingfactory where the office and storage may be separate from theerection areas) are there limitations on the routes between theareas.

(e) Will the Contractor have to share his access routes across the Siteor between sites with other contractors or other parties and willthe Contractor be required to provide additional access routeswithin the Site for other contractors.

(f) Are there any Local Planning Authority requirements in respectof access to and on the Site which have to be met by theContractor.

(g) Are there any bridges or other structures (such as suspendedfloors) which the Contractor may have to strengthen.

(h) Should there be any limitation on the weight of the Contractor’splant or vehicles to safeguard underground services (particularlyin factory areas) or limitation on plant height to avoid possibledamage to suspended services.

(i) Will the Contractor be required to provide a temporary hoardingor to fence around the Site and/or around working areas or providetemporary barriers around areas where plant is being erectedand, if so, what height and type of hoarding or fencing or barrier isrequired.

(j) On a green fields site, should the Contractor be legally responsiblefor the control of “injurious weeds”.

(k) Should the Contractor’s attention be drawn to his responsibilityfor the issue of notices for particular matters concerning access,such as “Notices to mariners” in the case of a river or coastalworks.

The foregoing are merely representative of matters concerning accessto the Site, each of which might require the drafting of a sub-clause.Many of them may not be applicable and there are likely to be manyothers peculiar to particular contracts and sites which will have to beincluded.There are also a number of matters concerning the use of theSite which should be dealt with, namely:—

(l) If there are to be limitations on access routes to the Site then theContractor should be required to make this a condition of all hissub-contracts and of all his orders for supply of material andconstructional plant; if this is not included there may beconsiderable difficulty in enforcing requirements concerninglimitation of routes.

(m)As a legal safeguard, the Engineer and the Employer should beaware of any private arrangement for access to the Site, made by


the Contractor with adjoining landowners; a sub-clause should beincluded which requires the Contractor to make sucharrangements in writing and to forward a copy immediately to theEngineer.

(n) There have been cases where contractors have used the Site forcarrying out work in connection with contracts for other employersin the area, particularly for the prefabrication of temporaryworks; to safeguard against this practice, a sub-clause shouldprovide that the Site shall be used only for the purpose of theContract.

(o) The Contractor should be made aware of the probable timing andnature of other contracts or work on or adjoining the Site duringthe currency of the Contract, particularly where there is likely tobe interaction between various contractors and more particularlywhere one contractor has to provide facilities for another; incomplex works involving a number of mechanical, electrical andcivil engineering contracts this matter is likely to require afurther clause rather than a sub-clause to “Site Access and Use”.

(p) Where public or private services cross the Site, the Contractormust allow access to them by the parties owning the services, atany time.

There may be a need for additional clauses if some of the provisionswhich have to be included would involve lengthy sub-clauses and sub-sub-clauses. If a clause has too many or too lengthy sub-clauses itbecomes tedious to read and difficult to find any particular provisionquickly; by breaking a clause into two, three or even four clauses withappropriate sub-clauses the general drafting will be improved. Analternative might be to incorporate some of the provisions inschedules or appendices, but this should preferably be limited tomatters which can be dealt with separately within the Contractor’sorganisation, or by sub-contract.

Most of the provisions under the headings of “Site Access and Use”are fundamental to construction and cannot be conveniently sub-divided. However, the facilities to be provided by the Contractor canoften be dealt with in schedules or appendices, as discussed below.

5.7.3Site Facilities

Generally in construction contracts the Site facilities for use by theContractor’s staff and labour and by the Engineer’s staff (and often byother contractors also) are to be provided by the Contractor. In certaincases some of these facilities are provided by the Employer, but most

SPECIFICATIONS 157

prefer all costs connected with the Works to be included within thecost of the various contracts.

Usually the provision of site facilities can be dealt with in three orfour clauses, as follows:—

(i) Contractor’s Working Areas and Facilities.(ii) Engineer’s Offices and Facilities(iii) Engineer’s Off-site Facilities

(iv)Facilities for Other Contractors.

Clause (iv) will only be required where there are a number ofinterlocking contracts involving work by different contractors.

Although the extent of the Contractor’s working areas within theSite can be dealt with in the clause which sets out the extent of thesite (and even where the working area is detached from the remainderit may be more convenient to include it in that clause), it is usuallymore satisf actory to draft a separate clause which combines both thedefinition of the working areas and the requirements regarding thefacilities which the Contractor must provide for his own work. Theclause ‘Contractor’s Work Areas and Facilities’ should have sub-clauses defining the working areas available to the Contractor on theSite together with any requirements for temporary fencing orhoardings or barriers needed to safeguard the Employer. In the UKtoday there are statutory requirements dealing with safety, healthand welfare on construction sites, but many of these are in generalterms. Public authorities and large corporations often have a policy ofincluding more specific requirements in their contracts in order tosafeguard the public and persons having business on their sites, as wellas to ensure that welfare facilities are adequate. In the category ofprotection of persons, the most common requirements are:

(a) that the Contractor shall provide safety helmets complying withBS5240 and shall make it a condition of employment that all hisemployees shall wear them on the Site;

(b) site electricity supplies and installations shall comply withBS4363;

(c) where explosives may be required, provisions for storage and use; (d) provisions for the storage and use of flammable gases;(e) where necessary, provisions for the storage and use of toxic

substances.


On the subject of welfare provisions, the more usual sub-clauses dealwith:

(f) specific requirements for the provision of toilet and washingaccommodation;

(g) on large contracts, specific provisions for first aid room andambulance arrangements;

(h) on large sites, canteen and other arrangements for the supply offood.

The specifying of canteens is a debatable subject; site canteens oftenprove unsatisfactory and give rise to complaints and action bycontractors’ employees which may be detrimental to the work. Anysub-clause on the subject should be flexible and should avoid givingdetailed requirements for the administration and furnishing of thecanteen.

Unless there are existing buildings available on site or, in the caseof very large works, the Employer decides to construct a separatebuilding under a preliminary contract, accommodation for theEngineer is invariably provided by the Contractor. Depending upon thesize of the contract, the Contractor may be required to providefacilities, generally as follows:—

(a) One or more fixed office buildings, each with toilet accommodation;on extensive sites, additional portable offices with toiletaccommodation.

(b) On large or highly technical contracts, a laboratory which mayrequire a separate building with special storage accommodation.

(c) Where the contract requires the storage of large quantities ofsamples (such as drilling cores and samples), separate properlyequipped storage buildings.

(d) Furniture for use in all buildings.(e) Equipment for use by the Engineer (this may include laboratory

equipment, surveying equipment, and instruments and testingequipment), but on small contracts it may be more appropriate forthe Engineer to use the Contractor’s equipment.

(f) Cleaning and maintenance of all buildings and the provision oftoilet supplies.

(g) The supply and maintenance of vehicles. (h) The supply of protective clothing for use by the Engineer and his

staff.(i) On extensive sites, the provision and maintenance of radio

communication equipment.(j) The provision of workmen to assist the Engineer when required.

SPECIFICATIONS 159

(k) The supply of specified documents such as British Standards.

On small contracts, where the site supervisory staff may be limited toone resident engineer, the provision of a simple hut, its furnishing andequipment can be dealt with in a relatively short clause with a fewsub-clauses setting out detailed particulars. To avoid later dispute, allservices and every item of furniture and equipment must be stated. Inlarge contracts this will involve extensive lists of items which are bestdealt with in appendices or schedules, the drafting of the main clausebeing limited to the general requirements and being cross referred tothe appendices or schedules. A typical clause for a large contractwould include sub-clauses dealing with the following matters:—

(i) The Contractor is to provide, maintain and remove the offices,laboratories, and stores and their contents, access roads and hardstandings as well as equipment, vehicles and documents all setout in the schedule to the clause.

(ii) The offices etc. to be provided and removed at the time stated (inthe sub-clause) or when directed by the Engineer.

(iii) The position in which the offices etc. are to be erected (usuallyadjacent to the Contractor’s area) is to be subject to approval ofthe Engineer. If they cannot be placed on the Site, then the sub-clause must say who has to provide the land required for theEngineer’s office compound.

(iv) The offices etc. to be regularly and properly cleaned daily andprovided with adequate supplies of toilet materials.

(v) The types of workmen or operatives required and the generalrequirements for their work such as overtime when required,labourers carrying messages, operatives who require drivinglicences, etc.

In large contracts the schedule to the clause is likely to need sub-divisions because of its length, the sections of the schedule often beingtitled as follows:—

A. Engineer’s Representative’s Offices, Laboratories and Stores—this would include an outline specification for the buildingsand their services, including layout sketches giving the minimumareas of the various rooms.

B. Furniture for Offices and Laboratories—this would include ageneral specification for the types of furniture and a list setting outthe number and description of each item required. The items donot have to be related to parts of the buildings; their use can bedecided when the furniture is to be delivered.


C. Equipment to be Used Solely by the Engineer’s Staff—this mayrequire further sub-division such as surveying equipment,laboratory equipment, electrical instruments, mechanical andelectrical equipment.

D. Protective Clothing—the numbers of various items should besufficient to allow for a reasonable number of visitors in additionto the site staff.

E. Communications Equipment for Use Solely by the Engineer’s Staff—the schedule must state, for each item of equipment, who isresponsible for obtaining licences for use, for payment of rentaland/or hire charges, and for payment of call charges.

F. Vehicles for the Engineer—this could include road vehicles, boats,and in some cases helicopters or aeroplanes. The numbers andtypes will need to be listed and it should be stated who hasresponsibility for insurance (business use by any driver approvedby the Engineer, for motor vehicles), fuel, lubricants, maintenanceand replacement of faulty vehicles.

G. Documents—generally British Standards and any other standarddocument referred to in the contract.

On a recent large contract the schedule for the Engineer’s facilitieswas twenty five pages long. It was, therefore, essential to sub-dividewhat amounted to a small separate specification. It would havedetracted from the readability of the main specification clause if it hadbeen included in the body of the text instead of as an appendedschedule.

Where a large proportion of the work included in the contract is to becarried out off site either in a manufacturer’s works or in a yard or a drydock, there may be a requirement for the Contractor to providefacilities there for the Engineer’s supervisory and inspection staff. Forwork likely to be carried out in an existing factory or yard, therequirements for facilities will have to be stated in a fairly generalform, as it is unlikely that the particular factory or yard will havebeen selected at the time of writing the Specification; therequirements will often be limited to the provision of a small officeand the use of available facilities. Such requirements can usually bedrafted as a sub-clause within the clause “Engineer’s OfficeFacilities”. Where the office work may be carried out in temporaryyards, the requirements for Engineer’s staff facilities will be similarbut additional to those required at Site and are likely to require anadditional clause for “Engineer’s Offsite Facilities”. Such a clausecould cross refer to the Site Facilities clause and, if necessary, crossrefer to parts of the Schedule to that clause for specifications ofbuildings, furniture, etc. Because the Specification is usually written

SPECIFICATIONS 161

before a contractor is appointed, there may be considerableuncertainty as to whether a large part of the work will be carried outoffsite or on the Site and the specification writer will have to considerall aspects of that problem and make provision for the possiblealternative contingencies in the Offsite Facilities clause. As anexample, in a particular contract it appeared likely that certain verylarge floating items might be manufactured in dry docks overseas andtowed into position for installation on site. The Offsite Facilitiesclause had to take account of this possibility and of the problem ofsupervising a long distance tow in open sea conditions; in the eventthe items were built in a specially constructed dry dock at the Site andfloated out and as a result that Offsite Facility clause was largelyredundant.

Where the work includes substantial amounts of civil, mechanicaland electrical engineering, the various types of engineering work areoften let as separate contracts and provision has to be made for onecontractor to provide facilities for others, in order to avoid aproliferation of small safety and welfare provisions; this is particularlythe case with toilet, first aid and access facilities. These may beprovided by the Employer and constructed under a preliminarycontract, but it is often difficult to plan and position such facilitieswithout a knowledge of the various contractors’ working methods andlabour forces. An alternative strategy is for one contractor (usually civilengineering, as the first large contractor on the site) to construct thefacilities he requires and to allow other contractors to use them andalso to extend them at the request and the expense of othercontractors. This arrangement will require clauses in the specificationfor the other contracts, referring to the availability of the facility andthe provisions for extending the facility, as well as for limiting theentitlement of the other contractor to construct additional facilities.This limitation can be enforced by making such additional facilitiessubject to approval by the Engineer and requiring them to beavailable for use by all contractors.

In the case of first aid room and ambulance facilities, adequatefacilities sufficient for all contractors may be specified to be providedby one contractor (in positions to be agreed on site) when there islikely to be a sufficiently large total labour force.

In practice, on large and complex works, a combination of thesemethods of dealing with common facilities is adopted; acomprehensive clause setting out all the requirements may be needed.There may also be a need to provide for the Engineer to arbitratebetween contractors in case of dispute concerning the extent and costof the facilities they require from one another.


5.7.4Control of Pollution and Protective Measures

The control of pollution and the avoidance of nuisance to premisesadjoining the site is a sensitive matter today and any misdeeds by acontractor could result in action against the Employer. Prevention isvery much better than cure and, in contracts where there is apossibility of pollution or nuisance it is, therefore, appropriate tospecify preventive measures and procedures. Protection of existingservice mains and structures (particularly those belonging tostatutory authorities or to neighbouring establishments) is logicallyrelated to measures for the avoidance of nuisance and should beincluded within this part of the Specification. Some of these measuresmay also be applicable to protection of the Works which should,therefore, also be included in this part of the Specification.

The necessary provisions can usually be covered in four mainclauses:—

Avoidance of Pollution and Nuisance.Construction Noise.Protection of Existing Services and Structures.Protection of the Permanent Works.

There are a number of statutory requirements governing the controlof various forms of pollution; it is not necessary to include inspecifications general statements prohibiting a contractor frompolluting water courses etc. However, the statutory requirements aremostly in very general terms and it is often desirable to impose somedetailed restrictions or to require detailed discussion with statutoryauthorities so as to ensure that the proper measures to avoid pollutionare taken by the Contractor. Discussions may have taken place withwater authorities or other local authorities in the course of preparingthe contract documents; any measures agreed with them must, ofcourse, be incorporated in the clause dealing with “Avoidance ofPollution”. An example of the type of measure which might have to bespecified would be the provision by the Contractor of settling ponds forall water discharging to a stream or to sewers and drains.

The Clean Air Act, where it has been adopted, provides somecontrol of atmospheric discharges, but does not control the discharge oftoxic materials. Should there be a risk of such a discharge, either inthe course of construction at the Site or accidentally (as, for example,during the delivery of materials to the site) then the Contractorshould be required to submit proposals for temporary works or

SPECIFICATIONS 163

procedures which will prevent such discharges and will deal with themif they are accidentally released despite precautions.

The measures to be taken to prevent possible pollution may becomplex and politically sensitive; if in doubt, it is always worthwhilespecifying that the Contractor shall discuss necessary measures withthe appropriate authorities (who should be specifically named in eachcase) and should either do this in conjunction with the Engineer’sRepresentative or should inform him immediately of the results ofsuch discussions and act promptly on any measure agreed with orrequired by the appropriate authority.

The avoidance of nuisance to the public and to adjoining owners isclosely related to the avoidance of pollution. The three most commoncauses of complaint and the provision for dealing with them are:

(i) deposition of mud and droppings on the road from vehiclesdelivering to or leaving the site—a sub-clause requiring theContractor to provide and use apparatus for cleaning lorry wheels,bodywork and roads should be included where there is a risk ofthis type of nuisance;

(ii) tipping of site spoil on unauthorised sites—this is a seriousproblem on many city sites due to the activities of someunscrupulous transport sub-contractors; on sites where thispossibility arises, a sub-clause should be included requiring theContractor to prevent spoil or rubbish being dumped on other thana “recognised tipping area” and making the Contractor responsiblefor stating where material has been dumped (when so requestedby the Engineer) and for removing any material improperlydumped and transporting it to a recognised tipping area;

(i ii ) dust from the site settling on to adjoining property—where dustyprocesses may be required in the construction or erection of theWorks, a sub-clause should be included requiring the Contractorto provide and use plant for the extraction of dust from theappropriate processes.

Another related matter is the protection of services and structures onthe Site. Once again, prevention is very much better than cure (andcheaper to both parties). Specific measures should be required of theContractor where a possible risk of damage is anticipated; suchmeasures would be set out in sub-clauses to a clause entitled“Protection of Existing Services and Structures” and should include:

(a) provisions for the support of underground services (to thesatisfaction of the owner of the services) during excavations;


(b) protection of underground services from the effect of heavy loadsarising from the movement of plant and/or from the storage ofmaterials;

(c) protection of buildings, of structures and services above ground, ofitems of archaeological interest, of permanent markers, etc., byboarding them up or otherwise to the approval of the Engineer;

(d) protection of trees and other valuable natural items by fencing offor other similar means.

The clause may need to include a general requirement for protectionof existing structures by methods approved by the Engineer, inaddition to specific requirement against identifiable risks.

Although the emanation of excessive noise from a site would in thepast be classified as a nuisance, it is today classed as “noise pollution”and is subject, in the UK, to statutory requirements. The detailedlimitations under the Act are laid down locally by the environmentalhealth officers of the local council. It is advisable to consult theseofficers when framing a specification clause which provides for acontractor to take measures to ensure that acceptable noise levels atvarious times of the day are not exceeded and that there is regularmonitoring to confirm that the specified requirements are beingadhered to. Complaints and protests by local residents concerningexcessive noise levels can have a serious effect on the progress of thework and may be damaging to the Employer’s interests. Clausesdealing with “Construction Noise” in inhabited areas have becomerelatively standard; a typical clause would read—

“1. Without prejudice to the Contractor’s obligations under theContract, the Contractor shall comply with the generalrecommendations set out in B.S.5228— Code of Practice for NoiseControl on Construction and Open Sites and shall comply inparticular with the requirements set out in the Schedule to thisClause.

2. The Contractor shall furnish such information as may berequested by the Engineer in relation to noise levels emitted byconstructional plant installed on the Site, or which the Contractorintends to install on the Site, and shall afford all reasonablefacilities to enable the Engineer to carry out such investigationsas he may consider necessary in connection with noise emissionson and from the Site.

3. If, at any time, the local authority requires compliance withconstruction noise conditions which are more onerous than thoseset out in Schedule to this Clause then such compliance shall beentirely at the Contractor’s expense.”

SPECIFICATIONS 165

The Schedule to the clause would usually set out particularrequirements on the following matters:—

(a) The provision of exhaust silencers, sound insulated enclosures,special “sound reduced” plant and provision for shut down orthrottling down of plant in intermittent use.

(b) Limitations on the times of use of particularly noisy plant (such aspile driving plant) which is difficult to effectively silence.

(c) Specific noise levels at various times of the day and of the weekwhich should not be exceeded on average (12 hour Leq.) and atpeak at the site boundary, or alternatively at one metre from thefacade of adjoining buildings, together with the requirement thatthe Contractor shall minimise noise emission so far as reasonablypracticable and particularly from operations permitted at night.

(d) Requirements for monitoring noise emissions, setting out thefrequency of monitoring by the Contractor and the submission ofreports on monitoring to the Engineer, together with the method ofmonitoring (such as that set out in the Appendix to B.S.5228 Part1, on a sound level meter to B.S.4197 set on slow response).

If the noise levels specified in the Schedule comply with the localenvironmental health officer’s requirements, then the local authorityis unlikely to set more onerous levels unless there are complaintsresulting from unsatisfactory or insensitive control and liaison by theContractor. Making the contractor responsible for the expense ofcomplying with more onerous levels is a recognition of hisresponsibility in this matter and should encourage liaison with andsensitivity to the noise problems of local residents.

Many site construction processes may cause damage to thePermanent Works which is difficult to remove and therefore meritspecific protection measures. Typical examples of such damage arerust staining on visible concrete facing or the entry of abrasive dust intosensitive mechanical parts. Where such risks arise it is advisable toprovide a clause requiring the Contractor to provide protection andspecifying the type of protection to be provided, as well as requiringthe submission of particulars to the Engineer for his consent.

The measures which the Contractor must take to avoid pollutionand to protect existing structures and the Works depend upon hisworking methods and risks. The purpose of specifying is to avoid thepossibility of the Employer becoming involved in these matters, whichare so dependent upon the Contractor’s actions. The clauses concernedmust, therefore, be drafted in a manner which will avoid reducing theContractor’s responsibility and risk. If there has not been carefulattention to this aspect of drafting then the Contractor may be able to


contend that he has a claim against the Employer in case of any actionagainst him by an aggrieved Authority or local resident. Theappropriate wording is indicated in the above typical clauseconcerning noise. As this part of the Specification is concernedprimarily with safeguarding the Employer, it is important that thespecification writer consult his client on the extent and type ofmeasures to be specified. Generally, most public authorities will wishto have specific measures included in the document, but some privateclients may prefer to leave these matters to be covered by the generalclauses of the Conditions of Contract and to face any consequencesthat may arise later, in the belief that this might prove moreeconomical. If the measures specified have been carefully thought outand reasonably related to the risks, then there ought not to be anyresulting increases in cost.

5.7.5AGeneral Requirements for Design and Checking

A large part of the General section will have to deal with the generalrequirements for construction, fabrication and erection of theWorks. In the case of a contract for design as well as construction,that part of the General section will have to be preceeded by clauseslaying down the general requirements for design which the Contractormust adhere to.

The Contractor may either be required to design all aspects of theWorks (as in so-called “Turnkey” contracts) in accordance withspecified duties or may be provided with an outline design in the formof layout drawings and a general specification and be required to carryout the whole of the detailed design including, if necessary,adjustments to the general design if these are required in order toprovide satisfactory details. One example of a turnkey contract is for aprocess plant where the duties consist of the definition of products andby-products to be produced as well as effluent quality (from a specifiedrange of feedstocks), the Contractor being free to produce his designsubject to construction or quality standards laid down in theSpecification.

An example of a different turnkey basis is represented by a contractfor design and construction of a multi-story car park in which thespecified duty is the number of cars to be accommodated and theContractor is free to design the car park subject to the layout, trafficand safety criteria laid down in a design manual (issued by the localAuthority) and subject to specified requirements for type and qualityof building services and of structural design standards.

SPECIFICATIONS 167

An example of a design and construct contract where the Contractorwas limited to the detailed design was the case of a pier to beconstructed with shops and amusements, in which general designlayout and elevation drawings (prepared by the Employer’s architect)formed part of the Contract and the Contractor had to prepare hisdesign to provide the completed pier in conformity with the overalldesign layout and the architectural, structural and services criterialaid down in the Specification. There was no duty specified for thewhole of the Works, but there were duties specified for particularparts, such as number of persons entering (for entrance design),provisions for security, service connections to shop and amusementpremises, etc.

The overall extent of design requirements should be stated as anitem in the sub-clauses of “Description and Extent of Works”, whichsets out the items comprised in the Works. The item dealing withdesign would be near the end of the list and would refer to thoseprevious items for which the Contractor is responsible for the design.Where the Contractor is responsible for designing all items comprisedin the work, then a typical design item in the sub-clause would read—

The detailed design for the whole of the foregoing including thepreparation of drawings and their submission together withcalculations, specifications and other documents, for approval bystatutory and other authorities and the Engineer.

Detailed design criteria for particular classes of work will have to begiven in each of the technical sections of the Specification. In theGeneral section, the specification writer will have to provide clausessetting out the criteria for the whole of the Works and therequirements for submission and approval of the design. Threeclauses are likely to be required, entitled respectively—

Design of Permanent Works.Form of Design Documents.Approval of Design Documents.

In the case of turnkey contracts, the design criteria for the whole ofthe Works should be set out under the heading of “Design ofPermanent Works” and reference made to design criteria for parts ofthe Works (such as services) specified in other clauses. Where onlydetailed design is required in accordance with a general design shownon Tender drawings, the clause will have to state that—


The Contractor shall carry out the whole of detailed design of theWorks in accordance with the general design outlines shown onthe Drawings referred to in the Tender and in accordance withthe criteria and the requirements set out in the Specification.

The design criteria will have to be elaborated to make it clear that theContractor’s design work must include all documents required toobtain statutory and Engineer’s approval and to satisfy all necessarycriteria whether stated explicitly in the contract documents or not.The Contractor should also be required to carry out any furtherinvestigations needed to determine additional criteria (such as soildata) to enable the design to be satisfactorily completed.Alternatively, if the Employer prefers to carry out such investigationshimself, then there should be provision for the Contractor to notify theEmployer of the investigation requirements in good time to avoiddelay. The clause should, if possible, specify any design life and anyrelated maintenance intentions, e.g. whether design life is to be basedon minimum maintenance or on maintenance at specified periods. Theclause will also have to state any general requirements concerningstandards and codes of practice to be used in design.

The Employer will normally expect the Engineer to check theContractor’s design, but the extent of such checks will vary fromcontract to contract. The clauses concerning the Form of DesignDocuments and their approval should be drafted so as to ensure thatthe appropriate documents (drawings, calculations, diagrams,computer printouts, and specifications) are provided by the Contractorfor all the checking required and in sufficient numbers andappropriate form to enable the Engineer to check and comment onthem and to file and store them efficiently. The sub-clauses willusually specify the maximum size of drawings, the standard titles andinformation to be provided on the drawings, the size and titling ofcalculation sheets and specifications, etc. The sub-clauses will alsohave to state the parts of the Works for which the Contractor mustsubmit drawings and other documents for approval and theprocedures for amending the design and for the issue of drawings“Approved for Construction”. Because of the close connection betweendesign, fabrication or manufacture and construction, if a fault arisesin the Works it will be difficult to identify the precise cause and it istherefore essential that in the drafting of design clauses theContractor shall not be relieved of any of his responsibilities fordesign, fabrication or manufacture and construction. A typical sub-clause would be—

SPECIFICATIONS 169

The Engineer’s approval or consent to any drawing or any otherdocument shall not relieve the Contractor of any of hisresponsibilities under the Contract nor shall it be interpreted asconfirming or otherwise the accuracy of any dimension or levelshown on such drawings. In particular, and without prejudice tothe generality of the foregoing, the Engineer’s approval shall notbe deemed to override or replace any approval by a Statutory orother Authority which may be required.

The Engineer’s approval merely confirms that an approved item willbe acceptable if, when incorporated in the Works, it complies with allthe requirements of the Contract.

Where there is no contractor’s design element in the contract theremay also be a requirement for the submission, for approval, ofworking drawings of fabrication and of manufacturer’s drawings. Aclause will therefore be required setting out the numbers and types ofdrawings to be submitted and the procedure for approval; the clausewill be similar to that required for a design and construct contract andshould include the provision that approval will not relieve theContractor of any of his responsibilities.

It is common during fabrication, manufacture and construction fordetailed amendments to be made to the Works and many Employersrequire “as-built” drawings to be provided by the Contractor oncompletion of the Contract. For this purpose a clause will be requiredsetting out the numbers and types of drawings and other documentsto be provided; these are often microfilmed and it is most convenientfor the Contractor to arrange this, when the “as-built” drawings havebeen completed.

Whenever drawings or other documents are to be provided underthe contract, there should be provision for contents lists to be suppliedfor easy reference.

Where the Contractor has to provide electrical or mechanical plant,the Employer will require operating and maintenance manuals. Anadditional clause will be needed setting out the general requirementfor these manuals, such as number of copies, size (usually A4), typesof covers and bindings, titling, indexing, etc. Any technicalrequirements to be specified for inclusion are best dealt with in theclauses which specify the plant duties and requirements rather thanin the General section.


5.7.5BGeneral Requirements for Construction and Inspection

Whether or not the Contractor has any responsibility for design, hewill always have responsibility for manufacture, fabrication and/orconstruction and the general requirements and limitations on thesematters will have to be described in the General section of theSpecification. The clauses will usually fall into four main categories:—

Materials and Quality Assurance.Temporary Works.Setting Out.Construction Methods and Good Housekeeping at Site.

Most of the clauses apply to erection and construction at the site;general clauses giving requirements and limitations on manufactureand fabrication may be required in the General section, but are oftenmore conveniently placed in sections dealing more specifically withparticular aspects of manufacture and fabrication.

Where the Specification has a separate section concerned solely withmaterials, it will be more appropriate for the general clausesconcerning materials to be incorporated at the commencement of thatsection; otherwise, it is convenient for the clause to be incorporated inthe General section. The general requirements for materials willusually cover five subjects:—

(1) Standards to be complied with—this may consist of a generalstatement requiring British Standards to be complied with unlessotherwise stated or permitted, or alternatively it may consist of alist of specific standards applicable to the work which must begenerally complied with unless otherwise specified or instructed,the latter alternative often being favoured in mechanical andelectrical contracts. There may also be a requirement that onlynew materials shall be used in the Permanent Works.

(2) Sampling and testing—dealing with:

(i) supply and delivery by the Contractor of samples for testingand of representative samples for approval;

(ii) responsibility for payment for samples;(i ii ) acceptability requirements for testing laboratories, testing of

samples and supply of test certificates;(iv) responsibility for payment for testing and/or test certificates;

SPECIFICATIONS 171

(v) arrangements for plant or machinery testing atmanufacturer’s works, for acceptance testing and for final testsof the Works.

(3) Factory and other off site inspection of materials, of fabrications,and of machinery and plant.

(4) Use of proprietary materials (including requirements to followmanufacturer’s instructions) and also the use of alternatives tothose specified.

(5) Transportation and storage on site or intermediately-this subjectmay overlap with provisions in the Conditions of Contract (such asConditions concerning exceptional loads) and with specificrequirements in the technical sections of the Specification; it isoften limited to dealing with the subject of special packing, ofstorage off-site, of covered storage and of keeping materials cleanon the Site.

Quality Assurance (QA) is a subject of increasing importance formanufactured goods and is now being extended to construction work atsite. Manufacturer’s QA schemes can be the subject of approval by theBritish Standards Insitution to confirm that they comply with theappropriate QA standards. The adoption of any approved QA schemereduces the need for extensive inspection at the factory and it is,therefore, in the Employer’s interest that the Engineer should beaware of all those items which are subject to such QA schemes. Asuitable clause dealing with this matter would read—

The Contractor shall obtain from manufacturers of equipmentwhich is proposed for incorporation in the Works, particulars ofthe quality control systems used in the manufacturer’s works,including particulars of any national quality assurance schemeswith which the manufacture is registered and of the operation ofsuch quality assurance schemes.

This clause makes provision for imported items as well as items whichmay be the subject of “British Standard” or other schemes.

There are often special requirements for the Contractor’sTemporary Works, such as minimum loads and widths of bridging toallow access by the Employer, certificates for temporary structures,cofferdam design standards, etc. and these may require one or moreclauses in the General section.

Clauses dealing with setting out of the Works are usually applicableprimarily to civil engineering and especially to highway works. Theremay, however, be requirements in connection with the erection of


mechanical and electrical plant, including providing for holding downbolts and fixings to be set out by the erection contractor so that theycan be installed accurately by the civil engineering contractor. Theclauses concerning setting out should also deal with the provision ofinstruments to the Engineer for checking (where there is no otherprovision for such instruments elsewhere), availability of temporarymarks, pegs, etc. used by the Contractor in setting out, andparticulars of setting out stations and bench marks provided by theEmployer together with any connected system for transferring theseto the Works. There will also need to be requirements for maintenanceof setting out stations and bench marks throughout the period of thecontract and for the construction of any permanent marks which maybe required.

There are a number of construction operations and related matterswhich are not conveniently included in other general items or in thetechnical sections of specifications; these can be grouped together as“Construction Methods and Good Housekeeping”. They will notgenerally apply to manufacturing or fabrication but would be requiredin connection with site erection. Because of the variety of worksinvolved, there will be a wide variety of miscellaneous items and it ispossible to refer to only a few basic points which are likely to beapplicable to most construction contracts, namely:

(a) keeping the Works dry—clauses dealing with excavation usuallyprovide for draining or pumping out water; however there areother construction operations which will be affected by water anda general clause is, therefore, usually required;

(b) control and clearing of rubbish at site—a proliferation of rubbishon the Site, coupled with poor layout of plant and operations, givesrise to dangers and inefficient working; the Engineer should havepower to lay down areas for the storage of rubbish pendingremoval from the Site;

(c) pre-construction surveys—some construction operations may giverise to claims for damage by the public or by the Employer and itmay be necessary for joint surveys to be undertaken prior tocommencement of construction, for comparison in case of damageclaims;

(d) notification of construction operations—to enable the Engineer toarrange inspection of construction operations it is essential thatthese be notified by the Contractor before work on them iscommenced; a similar provision is required for manufacturing andfabrication operations. There must also be provision for copies ofmaterial orders and sub-contracts to be made available to theEngineer, when required, so that before inspection visits are

SPECIFICATIONS 173

undertaken it can be confirmed that the orders placed by theContractor comply with the requirements of the Specification.

The basis for item (a) can be a simple clause such as—

The Contractor shall not allow water to accumulate in any part ofthe Works or to affect any construction operation; water arisingfrom or draining into the Works shall be drained or pumped toan approved disposal point.

This simple clause can be elaborated to suit any specific requirementsin connection with the whole of the Works; it may not cover all therequirements for specific operations, such as excavation, andadditional clauses may be necessary in the excavation section of theSpecification.

5.7.6Reporting and Programming

This part of the General section is concerned with the Engineer’sspecific administrative requirements for the Contract. Therequirements for notifying construction operations could be includedin this part but are usually more conveniently placed in clausesdealing with construction requirements. Generally two clauses arerequired, entitled respectively—

Reports, Returns and Records; andProgramme.

The clause concerning Reports, etc. should have an initial sub-clausesetting out the number of copies of all reports, returns and otherstatements and drawings which the Specification requires theContractor to submit. Usually two or three copies are required (onemay have to be returned to the Contractor with comments) but insome cases additional copies are required for distribution in theEngineer’s organisation and to clients and other outside organisationswho must be kept informed. Subsequent sub-clauses should set outthe various general returns which have to be made by the Contractorsuch as daily returns of labour, staff and plant, weekly and monthlyprogress reports, meteorological reports, etc. Detailed technicalreports or records such as geological strata found in excavations,reports and records of material and plant testing, and the like, shouldbe dealt with in the technical sections of the Specification, where fulldetails of the content required in such reports can be given. All sub-


clauses dealing with reports and records must state the times withinwhich the reports and records are to be made available.

The Conditions of Contract will usually have clauses which requiresthe Contractor to submit to the Engineer, within a specified time, aprogramme for carrying out the work and provision for earlycompletion of defined Sections of the Works. The Programme clause inthe Specification must set out the particular requirements of thecontract programme as well as the details to be included within it; itis an essential clause in all engineering specifications. As in the case ofmany other general clauses, it could be added as an additional clauseto the Conditions but, because it is so specific, it is more convenientlyincluded in the Specification General section. The format of theProgramme clause can be standardised as six or seven sub-clauses, asfollows:—

(1) Stating the form in which the programme is to be submitted i.e.bar chart or time location chart or critical path diagram or otherform or a combination of these, together with times for submission.Supplementary documents, such as schedules of drawings, may berequired for design and construct contracts. As an example, thefollowing has been used on a number of contracts—

“The programme required by Clause... of the Conditions ofContract shall be in the form of a bar chart covering all themain items of design and of construction and testing of theWorks at the Site, laid out in a format which will permitprogress of the various items to be indicated on it throughoutthe execution of the Works. It shall be supported by a criticalpath network of all requisite operations, which shall besubmitted with the programme. The programme shall also beaccompanied by a schedule of drawings which the Contractorexpects to prepare, giving the number and title of eachdrawing, its expected date of submission to the Engineer andthe date by which approval will be required.”

This typical clause can easily be modified to suit the particularrequirements of each contract; the references to design and todrawings prepared by the Contractor can be omitted where theContractor is not responsible for design.

(2) Giving the specific dates by which items of information arerequired from the Contractor and from the Engineer. Thefollowing is a typical example of a sub-clause which was used for aparticular contract—

SPECIFICATIONS 175

The programme shall show, inter alia:

(a) the dates by which drawings for the various parts of the Worksare to be submitted to the Engineer for approval and the datesby which approvals by the Engineer and by the Statutory andother Authorities are expected;

(b) the dates by which the Contractor requires further informationfor design and construction, in accordance with the provisionsof the Contract;

(c) the dates by which the Contractor requires instructions fromthe Engineer to carry out work described in the Contract asProvisional Sums;

(d) the dates by which the Contractor will require to place anynominated sub-contracts;

(e) the periods for design and the construction of importantTemporary Works.

This sub-clause is more specifically related to the contract detailsthan the first sub-clause and has to be carefully drafted to suit therequirements of each particular contract, e.g. in the case of anoverseas contract, dates for import of equipment and materialsmay be required or there may be a need to plan dates by whichapproval is to be given for setting up supplementary workingareas off the site, in order to obtain permission from the relevantgovernment departments.

(3) Listing particular requirements which the Contractor must takeinto account when preparing the programme for the Works; theserequirements are very specific to the particular contract and varyconsiderably from contract to contract; the specification writermust carefully analyse all matters which may affect the timing ofthe various operations and draw attention to those which mayaffect the Contractor’s working arrangements. Depending on thecircumstances, the length of the sub-clause may vary from a fewlines to several pages, particularly where there are interactionsbetween adjoining contracts, or where railway possessions arerequired, or where operations involve public safety and which mayrequire special working conditions. The following example wasused in the Specification for a design and build car park—

The Contractor shall take account of the following requirementsin the preparation of the programme:

(a) the construction of the Permanent Works shall not commenceuntil the Contractor has received approval, from the Engineerand the Statutory Authorities, of the calculations and drawings


for the layout, building foundations, details of basement floors,walls and waterproof membranes, and details of smokeventilation and floor drainage to basement floors;

(b) service connections involving excavations in public highwaysmay require 24 hour working;

(c) landscape work will have to be carried out at a time to enableyoung plants to become well established; if necessary, provisionshall be made for temporary irrigation pending completion ofthe permanent irrigation system.

(4) A method statement will normally be required and this sub-clauseshould draw attention to matters which are to be included withinthe method statement; many standard forms of Conditions have aclause providing for submission of a method statement and thesub-clause should, in that case, include a reference to the clausenumber, as in the following typical sub-clause—

The methods statement required in accordance with Clause…ofthe Conditions of Contract shall set out the manner in which theContractor intends to carry out the construction of the Works, anoutline of the temporary works to be provided and a list of themajor items of constructional plant and their use in the Works.

Other items, such as particulars of off-site yards, arrangements forthe supply of particular types of materials, arrangements for co-ordination with equipment suppliers, etc. may require to be includedin order to ensure that the method statement gives a clear picture tothe Engineer to assist him in arranging for the appropriatesupervision.

(5) There are often differences between the Contractor and theEngineer as to whether the programme is sufficientlycomprehensive and takes full account of all the likelyproblems; a sub-clause is required to enable the Engineer toinsist upon additional information if he considers it necessary,on the lines of the following—

The Contractor shall supply such supplementary informationrequested by the Engineer as will enable the Engineer to satisfyhimself that the programme complies with the requirements ofthe Contract and may consequently be approved. If the Engineeris not so satisfied the Contractor shall, after receipt of theEngineer’s observations, modify the programme in a mannerwhich will so satisfy the Engineer and thereafter the Engineer

SPECIFICATIONS 177

will approve the programme. The same procedure shall becarried out in connection with any revised programme submittedby the Contractor.

(6) The Contractor will usually have to submit, for the monthlyprogress meetings, a progress chart comprising a copy of theprogramme marked up with the progress of each operation. Atypical sub-clause would read—

The Contractor shall submit to the Engineer monthly (oneweek before the Monthly Progress Meeting) three copiesof the approved programme with the progress of all itemsof work at the date of submission marked thereon and shallconcurrently submit two copies of the supporting criticalpath network with progress marked up similarly and withsuch modifications as may be required to ensure thatsubsequent operations are completed in accordance withprogramme requirements.

(7) Many forms of Conditions have clauses which require theContractor to inform the Engineer from time to time asinformation is required for constructional purposes. Theprogramme clause should avoid prejudicing this provision; asuitable sub-clause would read—

The provision of the information above shall not absolve theContractor from obligations under Clause…of the Conditions ofContract.

5.7.7Miscellaneous General Clauses

Most contracts have a number of general requirements which cannotbe easily fitted into the logical arrangement and are normally thesubject of clauses at the end of the General section of the Specification.They are likely to be specific to the type of work and the type of clientinvolved in the contract. Three such miscellaneous clauses which arecommonly required are:—

(1) The supply, erection, and subsequent removal of one or more sitename boards, with a specified layout, giving the name of theEmployer and the Contract, the names of the Contractor and sub-contractors and the names of consultants.


(2) The provision of progress photographs (usually monthly) taken bya professional photographer. The clause usually states theapproximate number of photographs in a set and the number ofeach to be supplied, and gives requirements for the labelling of thephotographs with description and position, for albums (ifrequired), for control by the Engineer of the positions from whichthe photographs are taken, and for the ownership of the copyrightin the photographs (including ownership of the negatives).

(3) Particularly in public authority contracts, the control of publicityby the Engineer or through him by the Employer’s public relationsdepartment and the control of advertising at the site andparticularly on Site hoardings.

5.8Sub-Contracts

In most cases, a main contractor will sub-let part of the work using astandard form of sub-contract (either a national sub-contract form ora company form) which provides that the sub-contract work shall becarried out in accordance with the requirements of the main contract.The sub-contract specification then consists of the relevant parts ofthe main contract specification. Any special general or particularprovisions are usually set out in a separate document or schedulereferred to in the form of sub-contract. These provisions usuallyconsist of a list of the facilities which will be made available by themain contractor and terms for their use, as well as the provisions to bemade by the sub-contractor such as hutting, plant and materialsstore, welfare provisions, and other matters required under the maincontract but not being provided by the main contractor.

In principle, the main contractor is entirely responsible for hisrelations with and the work of his sub-contractors and, therefore, theform and content of his sub-contract documents are a matter entirelyfor him. In practice, particularly with specialist sub-contractorsemployed on erection or installation at site, the main contractor oftenfails to satisfactorily supervise specialist sub-contractors (relying onthe Engineer’s supervision to ensure satisfactory work), except as itaffects the programme for other items or trades, and often fails to fullyinform the sub-contractor concerning the general contractresponsibilities. This gives rise to problems during the course of thecontract and results in friction between the Engineer’s Representive,the Contractor and the sub-contractor. For these practical reasons theSpecification often contains a clause defining, in general terms, theinformation which the main contractor must provide to his site sub-contractors. This clause may consist of a specific requirement in a

SPECIFICATIONS 179

particular section of the Specification (such as that set out in item (1)of Part 5.7.2 of this Chapter) or (particularly when there are a numberof specialist sub-contractors) a general clause may be included in theGeneral section. The following general clause has been used in anumber of contracts and is typical of such a general provision—

The Contractor shall ensure that all his sub-contractors are inpossession of all those parts of the Specification and otherContract documents as are relevant to their work, not beinglimited to the specialist sections related to their expertise. Inparticular, but without prejudice to the generality of theforegoing, every sub-contractor shall receive copies ofSpecification Section…and be bound to carry out his work inaccordance with the applicable clauses therein.

In Part 4.5.9 of Chapter 4 it is recommended that the section ofthe Conditions dealing with nominated sub-contracts should includeclauses setting out the procedure to be followed by the maincontractor for obtaining quotations from suitable sub-contractors.Although these are most appropriately provided in the Conditions,they are not included in the national standard forms; furthermore theparticular procedures usually vary according to the organisationresponsible for preparing the contract document. For this reason theprovisions for obtaining nominated sub-contract tenders during thecourse of the contract are often included in the General section of theSpecification, rather than as an amendment or addition to thestandard form of Conditions being used.

Similarly, the typical clause concerning pre-ordering which is givenin Part 4.5.9 of Chapter 4 is often included in the Specification. Whereonly one type of material is being pre-ordered, then the clause dealingwith that material and the reference in the typical clause to “these aredescribed in the Contract and copies are annexed to the Contract”would be amended to “copies of these orders are annexed in theSchedule to this Clause.”; where orders for a number of different typesof materials or work are placed prior to letting the main contract, thetypical clause would be in the General section of the Specification andreferences to “the Contract” should be amended to read “Schedules toclauses of this Specification”. Where the typical clause is included inthe Conditions of Contract or in the General section of theSpecification then each of the technical specification clauses to whicha pre-order schedule is attached must state—


In accordance with Clause…of the Specification [or Conditions ofContract] a copy of the order for.........is attached as a Schedule tothis clause.

SPECIFICATIONS 181

182

CHAPTER 6Payment Documents

6.1Introduction

Chapter 4 (Parts 4.5.14 and 4.5.15) discusses the clauses to beincluded in the Conditions of Contract to enable the Contract Priceand the Terms of Payment to be evaluated. Those clauses should setout the general items of work for which payment is to be made by theEmployer to the Contractor, provide for any contra charges, and statethe times at which payments and advances are to be made. Theprecise method of evaluating and calculating the amounts of thepayments and advances is not usually given in the Conditions but isset out in accompanying Schedules or Bills of Quantities, which areoften longer than the Conditions themselves and are not, therefore,suitable for inclusion in them, except by cross reference. The form andcontents of the Schedules and Bills will vary with the type of contractand the character of the Works, but they may all be described as“Payment Documents” and will represent that part of the contractdocumentation which defines the financial provisions in detail.

As mentioned in Part 4.5.14, contracts can be classified (in respect ofpayment provisions) into two main types, described respectively as:

(a) Lump Sum contracts in which the Employer pays the Contractor alump sum for the whole of the work initially described in theContract; this lump sum is subject to adjustment in respect ofvariations in the Work and of contra-charges made in accordancewith the terms of the Contract; or

(b) Measure and Value contracts where the Employer paysthe Contractor for the quantity of work carried out, as measuredand valued in the manner defined in the Contract, subject todeduction of contra charges as provided in the Contract.

There may also be provisions in the contract for general claims, suchas for disruption of work (resulting from various causes) for whichmethods of valuation may either be laid down in specific clauses of thecontract or follow from a reading of the whole of the contract provisions.

Lump Sum contracts are the commonest form in building work andin mechanical and electrical engineering work and may be used insome civil engineering work where the quantities of the various typesof work cannot be fixed or accurately defined initially (at tender stage,where there is formal tendering). For building works and for somecivil engineering works the tendered lump sum is usuallyaccompanied by detailed Bills of Quantities which define all theindividual items of work, of material and equipment supply, and ofgeneral preliminary work which make up the Works. These are priceditem by item and the total represents the tendered lump sum. TheBills of Quantities are used to value authorised variations of theWorks to enable the tendered lump sum to be adjusted to arrive at thefinal contract sum, as well as being used for the valuation of work forinterim payment during the course of the contract. Those Lump Sumcontracts in which provision is made for interim payments and whichdo not include Bills of Quantities in the documentation (mainlycontracts for mechanical and electrical engineering work) are likely torequire a schedule defining in detail the manner in which interimpayments are to be calculated or valued, which can be referred to as a“Payments Schedule”. The documentation may also include a schedulesetting out in detail the methods of valuing authorised variations,which can be referred to as a “Variations Schedule”.

Most civil engineering contracts are of the Measure and Value typeand include Bills of Quantities in the documentation. These Bills areused to value the work carried out, in order to arrive at the finalContract Sum; they are also used for valuations for interim payments.In this type of contract, authorised variations are automaticallymeasured and valued in accordance with the tendered Bill items orwith variations of Bill items fixed by the Engineer in the course of thecontract. Many Measure and Value contracts, for mechanical andelectrical engineering work (and also for civil engineering work) donot have Bills of Quantities but are valued in accordance with aSchedule of Rates which sets out unit rates of payment for variousitems of work or for the supply of material or equipment. From thisschedule the value of the Contract Price is calculated by measurementof the quantities of the various items in the Works. Schedules of Ratesshould be accompanied by a schedule of approximate quantities of themain items of the work to enable the approximate total value of thecontract to be calculated at the time of tendering.


The rates of payment in Bills of Quantities or in Schedules of Ratesonly apply to contract quantities or values of a similar order to thosein the contract as originally entered into. If the contract quantities orvalues vary excessively, then the rates may have to be varied; theextent of variation acceptable before consideration is given tovariation of the rate is often defined in the pricing document (orsometimes in the Conditions of Contract). It will usually be of theorder of 15% to 25%, or occasionally up to 50%, of the total value ofany item and/or of the contract.

6.2Bills of Quantities

Bills of Quantities originated with building and civil engineeringcontractors who had to tender fixed prices in competition for variousworks. Each contractor would, from the drawings supplied by theclient calling tenders, calculate and list the quantities of each of thevarious types of work, which he would then price from his experienceof that type of work or prepare a price based upon a calculation of theamount of material and labour involved in a unit item. Each tenderingcontractor prepared his own Bill of Quantities (not disclosed to theclient), which varied in content from one contractor to another; thissystem still prevails in the United States. In the UK, clients andcontractors came to the conclusion that it was wasteful for Bills to beprepared many times over by the different tenderers for the samework, and the practice grew up whereby a Bill of Quantities wasissued with the other tender documents, to enable tenderingcontractors to submit offers on a common basis without having to takeoff their own Quantities. This arrangement was possible becausebuilding and civil engineering work was carried out to designsprepared by the client’s technical advisers and did not involve designby the contractor. The system did not evolve in electrical andmechanical engineering work because this normally included asubstantial proportion of manufactured items involving design by themanufacturer contracting to do the work, so that the quantities of thevarious items making up the work varied according to the particularmanufacturer’s design. Where the main part of the manufacturedwork was designed by the client’s advisers (such as in structuralsteelwork, where the fabricator’s design was usually limited to thejoints) the system of Bills of Quantities was used. A disadvantage ofthe system of common Bills was the variety of ways in whichmeasurements defining the work were made, so that tenderers wereuncertain what was included in particular quantities. As a result, inthe 1930’s, the rules for preparing Bills of Quantities were

PAYMENT DOCUMENTS 185

standardised and codified for the different classes of work; documentscalled “Standard Methods of Measurement” (setting out these rules)have been in use for many years.

In the UK the documents currently in use which set out the rulesfor preparing Bills of Quantities are:—

The Standard Method of Measurement of Building Works,published by the Royal Institution of Chartered Surveyors.

The Civil Engineering Standard Method of Measurement,published by the Institution of Civil Engineers.

The Method of Measurement for Highway Works, published byHer Majesty’s Stationery Office.

These standard methods of measurement are in each case related to astandard form of Conditions of Contract, i.e. the Building Methodrelates to the JCT Conditions, while the Civil Engineering Methodand the Highway Works Method are related to the ICE Conditions.The measurement documents are not easily used with substantiallydifferent conditions of contract, e.g. the Civil Engineering Method isnot easily applied in a contract which incorporates the JCTConditions. For this reason, the Standard Methods are not applicableto international and to overseas contracts.To attempt to overcomeproblems arising in this connection, the Royal Institution of CharteredSurveyors has published a document entitled Principles ofMeasurement (International) for Works of Construction, but this hasbeen little used in engineering work.

The contents and methods of preparation of Bills of Quantities havedeveloped over many years and have become standardised, to theextent that “libraries” of item descriptions are available for draftingthe Bill, and a substantial part of the operation of Bill drafting can becomputerised. There is also an extensive literature on the preparationand drafting of Bills of Quantities to which reference can be made byengineers engaged in drafting Bills. Discussion of the drafting of theBills of Quantities in this Chapter is, therefore, limited to thegeneral principles which need to be understood in connection with thedrafting of other payment documents, particularly by engineers notfamiliar with the preparation of Bills of Quantities.

Bills of Quantities consist of a schedule, defined as “a list of itemsgiving brief identifying descriptions and estimated quantities of workcomprising the execution of the works to be performed”, and a Preamblewhich sets out the basis upon which the Bill has been prepared and isto be priced. The Preamble includes cross references to otherdocuments such as the Conditions of Contract, the Specification andthe Method of Measurement.


The Bill schedule is in a standard format consisting of columns withthe following headings:—

The first column is for the numbering of each item while the secondcolumn contains descriptions of items of work together with headingsand sub-headings relating the items to relevant parts of the Works.Against each item is set (in columns 3 and 4) the unit of measurementand the quantity of that work, so that tenderers can insert the rate andthe extended amount in columns 5 and 6.

The Method of Measurement gives the unit in which themeasurement of each item of the Bill is to be made; this will be linearunits or area units or cubic units or weight or time (hour, day orweek) or number or, where none of these are applicable, a sum whichis to be priced by the tendering contractor. In some cases (where thework cannot be accurately defined) a Provisional Sum is shown in theunpriced Bill; this is an amount to be included in all tenders.

The item descriptions are prepared in accordance with the rules inthe Method of Measurement and are often taken from a standardlibrary of descriptions. The quantities are calculated from thedrawings and are usually measured net, any waste allowance beingincluded within the rate for the work, in accordance with Method ofMeasurement rules. Provision is made for totalling each page andcarrying it forward to sub-summaries for each Bill (referred to as“Collections”) and a Grand Summary with total for all the Bills. TheMethods of Measurement require that a separate Bill shall be writtenfor each class of work. This format can be used for many otherpayment documents with the omission of inappropriate columns, e.g.where there are no quantities, the columns for “Quantities” and“Amount” would be omitted.

As mentioned previously, the standard methods often requireamendment for particular contracts and these amendments are madein the Preamble. In some cases the standard is not appropriate and amethod of measurement specific to the contract has to be appended tothe Preamble. For those who are not familiar with Bills of Quantities,the contents of the Preamble are best explained by an example. Thefollowing is the Preamble for Bills of Quantities forming part of thedocumentation of a contract for a small tunnel. This tunnel wasconstructed as part of highway works; the Civil Engineering StandardMethod of Measurement was not applicable, but the Method ofMeasurement for Highway Work did not include provision fortunnelling. A Method of Measurement for tunnels in highway works


was, therefore, drafted and appended to the Preamble, and this isreferred to. The complete preamble (which is based on the modelPreamble in The Standard Method of Measurement for HighwayWorks) is as follows—

PREAMBLE

1. In this Bill of Quantities the sub-headings and itemdescriptions identify the work covered by the respectiveitems, but the exact nature and extent of the work to beperformed is to be ascertained by reference to theDrawings, Specification and Conditions of Contract as thecase may be read in conjunction with the matters listedagainst the relevant marginal headings ‘Item coverage’ inthe “Method of Measurement”. The rates and prices enteredin the Bill of Quantities shall be deemed to be the fullinclusive value of the work covered by the several itemsincluding the following, unless expressly stated otherwise:—

(i) Labour and costs in connection therewith.(ii) The supply of materials, goods, storage and costs in

connection therewith including waste and delivery to Site.(iii) Plant and costs in connection therewith.

(iv) Fixing, erecting and installing or placing of materials andgoods in position.

(v) Temporary Works.(vi) The effect on the phasing of the Works of alterations or

additions to existing services and mains to the extent thatsuch work is set forth or reasonably implied in thedocuments on which the tender is based.

(vii) General obligations, liabilities and risks involved in the executionof the Works, set forth or reasonably implied in the documents on which the tender is based.

(v ii i)Establishment charges, overheads and profit.


2. The measurement of work shall be computed net from theDrawings unless stated otherwise in the Method ofMeasurement. The Contractor shall allow in the rates andprices for waste.

3. Items against which no price or rate is entered shall bedeemed to be covered by the other rates and prices in theBill of Quantities.

4. Where in the Contract a choice of alternative materials ordesigns is indicated for a given purpose, the descriptionbilled and the rates and prices inserted shall be deemed tocover any of the permitted alternative materials or designswhich the Contractor may elect to use and allmeasurement of such work shall be based upon the designto which those billed descriptions refer.

5. The information in the contract as to the whereabouts ofexisting services and mains is believed to be correct but theContractor shall not be relieved of his obligations underClause 11 of the Conditions of Contract. The Contractorshall include in his rates and prices for taking measures forthe support and full protection of pipes, cables and otherapparatus during the progress of the Works and forkeeping the Engineer informed of all arrangements hemakes with the owners of privately owned services,Statutory Undertakers and Public Authorities asappropriate and for ensuring that no existing mains andservices are interrupted without the written consent of theappropriate authority.

6. Labours in connection with nominated Sub-contractorsshall include:

(a) in the case of work or services executed, for affording theuse of existing working space, access, temporary roads,erected scaffolding, working shelters, staging, ladders,hoists, storage, latrines, messing, welfare and otherfacilities existing on Site and the provision of protection,water, electricity for lighting, and clearing away rubbishand debris arising from the work;

(b) in the case of goods, materials or services supplied, fortaking delivery, unloading, storing, protecting andreturning crates, cartons and packing materials.


7. For the purpose of this Contract and unless otherwise morespecifically defined in the Method of Measurement anycurved work to a radius greater than 30 m ismeasured as straight. The Contractor shall allow in therates and prices for taking measures required for constructingsmooth curves to the radii shown on the Drawings.

8. For the purpose of this Contract the Method ofMeasurement referred to in Preamble 1— GeneralDirections is in accordance with the pages immediatelyfollowing.

This preamble gives the cross references to other documents anddetailed statements setting out the costs and risks which are to beincluded in the rates for all the items. The additional details of costsand risks which are specific to particular items are referred to in theMethod of Measurement which, in this case, is appended to thePreamble. The principles and the drafting of this preamble can beapplied to many other pricing documents.

6.3Schedules of Rates

Although a Schedule of Rates appears to be a Bill of Quantities withthe Quantities column and the Amount column omitted, theimportant difference between the two is that the Bill is intended todescribe the whole of the Works so that the sum total of the Amountcolumn represents the tendered price. A Schedule of Rates, on theother hand, is merely a basis for arriving at the Contract Price andmay not include many small items, the price of which may be thesubject of negotiation during the course of the contract. It is, of course,very desirable to include all the items large and small which make upthe Works, to enable firm prices to be fixed at commencement of thecontract, but the Schedule of Rates does give greater flexibility wherethere are limitations on knowledge of the extent of the Works at theinitial stages. Tendering contractors need approximate quantities ofthe main items to enable them to rationally analyse the cost; at the


very least they must have a knowledge of the approximate total costsof the Works or, in the case of annual maintenance contracts, theexpected rate of working.

When drafting Schedules of Rates it is very important to ensurethat the item description accurately defines the work included in theitem concerned. Bills of Quantities usually rely upon a standardmethod of measurement and upon the definitions in the Preamble toensure that the work included in the various items is accuratelydefined. In Schedules of Rates for civil engineering work this is oftenachieved by incorporation of one of the standard methods ofmeasurement together with a preamble similar to that used for Bills ofQuantities (on the lines set out above). This procedure would notusually be adopted in other branches of engineering where there are nostandard methods of measurement nor is it essential in civilengineering, particularly where it is considered desirable to use itemdescriptions which include a number of classes of work in eachdescription.

The definitions in a Method of Measurement allow the descriptionsin the corresponding Bill of Quantities to be shortened. Where, as inthe case of a Schedule of Rates which is not based upon any standardmethod of measurement, these definitions do not exist the draftsmanmust either write a method of measurement to be appended to thePreamble or, alternatively, extend the descriptions to incorporate thedefinition which would otherwise be given in the Method ofMeasurement. The latter method is often more appropriate forSchedules written for contracts where the standard Methods ofMeasurement are considered inappropriate, such as in the processindustries and in other mechanical and electrical engineering work. Inthose contracts, where the Engineer often acts as a managingcontractor, the payment document will frequently consist of arelatively short Schedule listing items of work which each include anumber of trades (or classes of work) and a variety of materials and inwhich the risks and extent of work is less well defined or more diffuse,i.e. the description and the consequent rates and quantities are moreapproximate and, if they are to be considered fixed in price, requirethe parties to accept the kind of risks attached to such approximation.The Preamble must reflect this state of affairs; the following Preambleto a Schedule of Rates, which formed the payment document in one ofthe contracts for a process plant, illustrates the character of thedrafting required—


This Schedule gives rates for the various classes of engineeringwork to enable the contract price as defined in the Conditions ofContract, to be ascertained from the measurements of the quantitiesof work to which the various rates refer.

Measurements of concrete work shall be nett the dimensions shownon the drawings. The space occupied by reinforcing steel will not bededucted from the volume of concrete, but holes and cavities will bededucted.

Reinforcement shall be measured nett off the drawings and for thepurpose of measurement shall be assumed to have a weight of 0.78 kg/sq.cm/m.length.

Measurements of excavation, where not included in the rate forother works, shall be measured the nett area of the bottom of theexcavation, as shown on the drawings or as otherwise instructed,multiplied by the average depth from the ground level at the time ofcommencing excavation to the bottom of the excacation, no allowancebeing made for slopes or strutting, the cost of which will be deemed tobe included in the rate.

The rates for excavation shall be deemed to include the cost ofexcavating in dry or wet soil and of removing all water which mayenter the excavations.

Measurements of filling, where not included in the rate for otherwork or otherwise stated shall be the nett volume to be filled, asmeasured from the drawings or, where this is not possible, measuredat site, and no allowance shall be made for bulking, settlement of fill,consolidation, or similar factors.

Measurements of drains shall be the nett length from centre line ofgulley or other connecting point to centre line of main drain or otherconnecting point, and no deduction will be made for the width of thegulley or the main drain.

Measurements of carbon steel pipelines to be the length of pipe onits centre line from inlet connection to outlet connection. The length ofbranch lines to be measured from line of main pipe to outlet; wherethe connection is between two pipes, from centre line to centre line ofmain pipes. Deductions of length are to be made where valves areinserted. The deducted length shall be the distance between faces ofvalve flanges or of valve ends on butterfly valves.

Unless otherwise specifically stated to the contrary, the rates in thisschedule are deemed to include the cost of all constructional plant,materials and labour required for the finished work described underthe respective items and all preliminary costs for supervision, offices,labour welfare, setting out, temporary works, clearing up oncompletion, and all other general liabilities, obligations and risksarising out of the Conditions of Contract and the SupplementaryConditions, and of the Specification.


PREAMBLE

The descriptions in this Schedule of Rates have been prepared uponthe basis that the tendering contractor is experienced in therequirements of engineering in connection with petrochemical works.So far as possible, these descriptions indicate the various operations,the cost of which are included in the rate but, notwithstanding theomission of the description of any operation, the rates shall be deemedto be inclusive of all the costs of all operations which may be ascribedto the class of work referred to in the item, and no claim will be madein respect of alleged defective description on the grounds that furtheroperations other than those described are necessary for the provisionof the class of work required by an item of this Schedule.

The drawings attached to this Schedule for tendering purposes arepreliminary only, and it may be anticipated that there will bealterations to the form of the work in the course of developing andfinalising the engineering designs. The purpose of the preliminarydrawings is only to indicate the general extent and type of the work, toenable a contractor experienced in petrochemical engineering work toascertain the class and type of work to which the descriptions in theSchedule refer, and to ensure that the rates inserted include the costof all the operations which may be involved in carrying out the work.Any explanations required by tendering contractors in connection withthe class of work indicated on the drawings or described in thisSchedule, will be provided prior to tendering and submission of anoffer by the tendering contractor in the form of a complete Schedule ofRates with all rates inserted will be deemed to indicate that theContractor has fully satisfied himself as to the requirements of thework.

In the course of development of the detailed drawings, theproportions of the various operations included within the itemsdescribed in this Schedule may vary from the proportions which maybe inferred from the drawings attached to the tender documents orfrom the Contractor’s assessment of those proportions. The ratesinserted in this Schedule are deemed to include provision for all risksand advantages which may accrue from this procedure.

Certain items included in this work, such as grouting, roads,trenching, etc., may require the Contractor to make available labourfor such items, after the main work has been completed. It is intendedthat the Contractor shall make appropriate provision for reduction inthe overall cost of supervision when the main works are completed, sothat the items referred to bear an appropriate supervision charge. Noclaims in respect of increased cost of preliminary items such assupervision, office accommodation, welfare facilities, etc., will be madein connection with such items of work carried out after the mainworks are complete or of waiting upon other trades on a daywork


basis, up to such time as the erection of the plant has been completed,and the plant handed over complete to the Employer.

It will be seen that the Preamble includes rules defining the extent ofmeasurement of different types of work, these rules being applicableto a number of items. It also includes the necessary clauses coveringthe general definition of labour, materials and equipment to beincluded in the rates (similar to the preamble to Bills of Quantities)and the provisions required to bind the parties to a more approximatetype of description and information. The Preamble does not includedefinition of the classes of work included in each item; these have tobe set out in the item descriptions which are, therefore, considerablylonger than would be expected in Bills of Quantities. An example ofdescription (for underground piping), in the format of the Schedule,taken from the same document as the Preamble, is as follows—


The actual schedule includes pipes up to 1.2 m in diameter and thisitem is followed by items described as “Extra over” for the additionalcosts of fittings such as bends, tees, stub ends, etc.; a typicaldescription for such Extra over items was as follows

The term Extra over refers to additional work or supplies inconnection with an item previously measured and priced; the use of theterm avoids deduction in measurement to allow for the additionalwork to be described separately, e.g. in this case the pipeline ismeasured its total length including length of bends and other fittingsand the use of the term Extra over provides for the additional cost ofthe fittings, whatever their length. It is particularly convenient to usethis term when the item concerned may vary in length, dependingupon the particular manufacture or standard which the contractoradopts in his pricing. The abbreviation Nr is the standard


abbreviation for a measured number which is adopted in theEuropean Community and is not to be confused with the abbreviationNo., used generally in English.

6.4Payment Schedules

As discussed in Chapter 4 Part 4.5.15, most engineering contractsprovide for interim payments monthly during the course of thecontract or stage payments when specific stages of the work have beencompleted. These interim payments are usually made against thecollateral of completed work which has become the property of theEmployer; the contract must, therefore, provide for the valuation ofthe completed work month by month. Where the contract documentsinclude a Bill of Quantities or a Schedule of Rates, evaluation forinterim payments is relatively straightforward and consists ofapproximate measurement of the work, priced at the rates in the Billor the Schedule. Any work not described in the Bill or the Schedule isthen priced at rates fixed by the Engineer (often the rates areprovisionally fixed for interim payments and finally fixed oncompletion) and the resulting valuation certified by the Engineer.

In the case of lump sum contracts for mechanical or electrical workor for “design and build” contracts there may be no Bill of Quantitiesor Schedule of Rates: valuation for interim payments will usually bemade based upon a schedule of the proportion of costs of variousstages or parts of the work, either in the form of percentages totalling100% or in the form of lump sums which total to the tender price.Where the contract provides for monthly interim payments, theEngineer will base his monthly valuation upon the approximatepercentage of each part or stage of the work which has been completedat the end of the month and will certify accordingly. Where only stagepayments are to be made then the Contractor will only be entitled tobe paid against the Engineer’s certificate that the stage concerned hasbeen substantially completed (full completion down to the last nut andbolt may not be practicable because of connection to other parts or forother similar considerations).

When design is to be carried out by the contractor who is toconstruct the Works, then either such a Payment Schedule setting outthe proportion of the contract price for each stage should be includedin the tender document or, alternatively, the successful tenderershould be required to provide a Bill of Quantities or other definitivepayment document before the contract is awarded. The latteralternative is only feasible if adequate time is allowed for the tendererto prepare a reasonably detailed design. Any payment document


prepared by a tenderer must be carefully examined and any necessaryrevision negotiated, to ensure that it truly represents the workproposed by the tenderer, so as to avoid the risk of substantial frontend loading which would result in early payment being excessivelyhigh in relation to the amount of work actually done at the time. Inextreme cases it might be necessary to redraft the document inagreement with the tenderer. An alternative is for the Contractor toprovide on-demand bonds against interim payments and thus avoidvaluation of the work each month, each interim payments being afixed percentage of the contract price and the on-demand bond beingincreased prior to the Employer making payment, so that the total ofthe interim payments is always covered by the bond. This methodmight add about 1% to the cost of the Works to pay bank charges forthe bonds.

If payments are to be made in very few stages (such as is common inshipbuilding), the stages and their percentages may be included in theConditions of Contract. Otherwise, a Payment Schedule should beincluded in the contract. This would be in the form of a simple preamblesetting out the method of valuation, followed by a schedule setting outeither the price of each item or, preferably, the percentages of thevarious items of work; the schedule should total either one hundredper cent or be equal to the tender price. As an example, a schedulewhich was used for a building within a process plant, is given below.In the example the actual percentages have been omitted.

INTERIM PAYMENTS SCHEDULE PREAMBLEInterim payments will be made according to the value of the various

parts of the work completed in accordance with the percentages setout below. Partially completed sections of work shall be paid for inaccordance with the proportion of the appropriate percentageestimated approximately by agreement between the Contractor andthe Engineer.

Tendering contractors shall insert in this Schedule the costpercentages of the various items as a percentage of the tendered LumpSum. This percentage shall be based upon all preliminary and generalcosts being spread over all items as a common percentage addition tothe nett cost of labour, materials and plant. With the approval of theEngineer, additional payment may be claimed in respect of materialsat Site in accordance with an estimate agreed with the Engineer.


Although this schedule was prepared for building work the principlesapply equally to other types of construction work. Where the contractconsists of the manufacture of equipment and its erection at site, thenthe last paragraph of the Preamble will usually provide for paymentfor equipment only when delivered to site or to the Employer’s store,but not intermediately during manufacture, unless satisfactoryarrangements are made for legal ownership of the manufacturedmaterial to pass to the Employer. A suitable alternative paragraphmight read as follows—

Payment for items of equipment will only be made when suchequipment has been delivered to Site or into a store provided byor approved by the Employer and such equipment is clearlymarked as the property of the Employer.

The schedule given above is reasonably simple but sufficient for itspurpose. Because the percentages and the payment are necessarilyvery approximate, it is essential that the draftsman does notintroduce such complexity as would give the appearance of greateraccuracy than is justified, in order to avoid the possibility of it beingcontended that the percentages set out in the Schedule accuratelyrepresent the cost of the various stages or items. Such a contention


might, if sustained, lead to the percentages being used as the basis fornegotiations concerning claims and variations; the nature and themanner of calculation of the percentages is not suitable for such a use.If, instead of percentages, sums are to be inserted, then this willincrease the apparent accuracy of the schedule by an order ofmagnitude and it may be desirable to extend the preamble in order todefine the items more fully; as an example, sums in a small contractof £100,000 would be given to the nearest £10, but percentages wouldbe given to the nearest 0.1, representing £100.

6.5Payment for Variations

Even in relatively straightforward contracts incorporating Bills ofQuantities, payment for the work involved in carrying out theEngineer’s variation orders may give rise to serious disputes. It is,therefore, important to include, within the contract documentation, asmuch data concerning the prices for various items of the work as willenable as many as possible of the variations to be valued at rates setout in the contract.

As mentioned in Part 6.1 of this Chapter, where Bills of Quantitiesor Schedules of Rates form part of the contract documentation, therates and prices in these will normally be used for valuing thosevariations which consist of work similar to the items in the Bills or theSchedule. Dissimilar items and the effects of any disruption to thecontract work will still have to be negotiated. In the case of Lump Sumcontracts where there are no Bills or Schedule of Rates it is highlydesirable that a document be included which will provide a basis forvaluing foreseeable types of variations. This most commonly occurswhere the Contractor is responsible for design as well as constructionand where it is not feasible to provide detailed Bills or a Schedule ofRates at the stage of tender acceptance because a sufficiently detaileddesign is not then available.

In such cases the form and drafting of a Variations Schedule willhave to be closely related to the contractual provisions and the types ofwork in each case. In the case of construction contracts based uponmodifications of one of the accepted standard forms of Conditions, theVariations Schedule can often consist of a schedule of lump sums foreach of the different classes of work to be carried out, accompanied bya preamble which provides that variations shall be valued proportionalto the measured amount of the principal item of that class of workwhich would form part of the final detailed design of the unvarieditem. Thus, where the work includes different classes of pipework, thelength of pipe of each class of pipework can be determined for the


unvaried detail design. Variations involving changes in the length ofdifferent classes of pipework can then be valued in proportion to thelump sum for that class of pipework, provided that the documentpreamble states that secondary items such as joints and otherfittings, brackets, insulation, corrosion protection, and the like, areincluded in the measurement of the principal item, i.e. the main pipeof that class of pipework.

Such a variation schedule can be conveniently combined with anInterim Payments Schedule which gives lump sums for each of theitems. As pointed out in the previous Part of this chapter, the itemswill need to be more fully defined than would be the case for aschedule which merely included percentages for each of the items,rather than lump sums.

Such schedules can only deal with variations in the extent of thetypes of work listed and then only within specified limits. Thelimitations which apply to the schedule, such as the extent ofvariation in total quantity which is acceptable for pro-rata adjustmentand the provisions in respect of equipment supply and erection, mustbe included in the preamble. A useful example of this type of scheduleis given in the next Part.

6.6Example of Variation and Interim Payment Schedule

The following is an example of the drafting of a combined interimpayment and variation schedule which should assist the reader in hisunderstanding of the previous two Parts of this chapter and mayprove useful to draftsmen preparing this type of document for a designand construct contract.

SCHEDULE FOR INTERIM PAYMENTS AND VARIATIONSPREAMBLES

1. The price set against each of the items in the Schedulerepresents the inclusive price for all the work in that item;the total of all those item prices is the tendered LumpSum.

2. The item descriptions identify only the principal items ofwork involved. The item price includes all relatedsecondary items and operations (such as, but not limitedto, framing, fixings, brackets, finishes and finishings, jointsand connections and items required for them, controls andinstrumentation not otherwise itemised, and the like) so as


to ensure that the prices comprehensively include allsecondary items and operations referred to or reasonably tobe inferred from the Conditions of Contract, theSpecification and the Drawings in respect of the relatedprincipal items (whether or not they have been described inthe Schedule as included within that principal item) so thatthe tendered Lump Sum derived therefrom and inserted inthe tender represents the full inclusive value of theobligations of the Contractor for design, construction,completion and maintenance of the Works. In certain casessome secondary items and operations are included in thedescriptions of the principal items to the extent necessaryto enable such secondary items and operations to becorrectly allocated, but the inclusion of such secondaryitems in a description shall not limit thecomprehensiveness of the corresponding price nor excludeany secondary items referred to or reasonably to be inferredfrom the aforementioned documents.

3. Each of the items shall include:—

(i) Design and costs in connection therewith.(ii) Labour and costs in connection therewith.

(i ii ) The supply of materials, goods, equipment, storage andcosts in connection therewith, including but not limited towaste and delivery to Site and to and from all other placeswhere such delivery is required.

(iv) Construction plant and costs in connection therewith.

(v) Demolishing or otherwise extracting and removing fromthe site existing structures and equipment and other itemsor materials.

(vi) Fixing, erecting, installing or placing materials, goods andequipment in position, including connected operations suchas, but not limited to, fabrication, testing, commissioning,and the like.

(vii)Temporary Works.


(viii)The effect on the phasing of the work of alterations oradditions to existing services and mains, and of limitationsof occupation of various parts of the Site and of the variousprogramme limitations set out in the Contract.

(ix) General obligations (including, but not limited to, facilitiesfor the Engineer, as built drawings, operation andmaintenance manuals and progress photographs),liabilities and risks involved in the design and execution ofthe Works set forth or reasonably implied in the documentson which the Tender is based.

(x) Establishment charges, overheads and profit.

4. Each valuation for interim payment shall comprise, as atthe valuation date:

(a) the prices of all items in the Schedule which have beencompleted at the Site;

(b) a proportion of the prices of all items in the Schedule whichhave been substantially completed at the Site;

(c) a proportion of such items in the Schedule which have beenpartially completed at Site and which partially completeditems the Engineer considers would be viable if thecontract work ceased at the valuation date;

(d) 90% of the value of materials or equipment which isrequired for incorporation in the Works and which has beenbrought to the Site or has been stored in a manner and in astore approved in writing by the Employer. The proportionsreferred to in the foregoing sub-paragraphs (b) and (c) shallbe determined by the Engineer whose decision for thepurpose of interim valuation shall be final and binding onthe parties.

Rules for Valuation of Ordered Variations

1. In accordance with the provisions of the Conditions ofContract, the Schedule shall be used for valuing orderedvariations where such method of valuation is appropriate inaccordance with the following rules.


2. The pro-rata valuation of variations of items other thanthose having units specified as “sum” shall be determinedfrom the formula—

whereV is the value of the variation,P is the price of the relevant item as stated in the

Schedule,Q is that quantity (measured in the units specified in the

Schedule) of the principal item whose price is P, whichwould have been incorporated in the Works in accordancewith the Contractor’s final design, if no ordered variationhad been made,

q is the quantity of the variation measured in the samemanner and the same unit as Q.

3. Where an ordered variation requires that an item whichforms part of the Contractor’s design and which has unitsspecified in the Schedule as “sum” shall be varied, thevalue of the variation shall be limited to the net increase orreduction of cost of the material and/or equipmentincorporated in the item including delivery to the Site. Thenet cost shall be the price paid by the Contractor for thematerials or equipment delivered to the Site afterdeduction of all discounts, but including the cost ofunloading and subsequent handling. Where, in accordancewith an ordered variation, materials or equipment differingfrom those in the Contractor’s “final design” are requiredthen these rules shall not apply and the item shall beotherwise valued in accordance with the provisions of theConditions of Contract.

4. Unless otherwise agreed by both the Contractor and theEngineer, these rules shall apply to variations of any itemin the Schedule which do not result in a variation of theprice of that item by more than 20%.

5. The Contractor and the Employer accept the risks andadvantages of the provisions in these rules and recognisethat the price adjustments which result will beapproximate but acceptable.

These preambles and rules would be followed by a schedule of all themain items of the Work. A full schedule for any substantial work will


be fairly lengthy; an example of part of a schedule, covering a numberof typical items in certain types of construction contracts might be asfollows.


This schedule is based on items extracted from a working document,suitably modified, and is intended merely to illustrate a particularmethod of dealing with the valuation of some of the ordered variationswhich may arise when the Contractor is responsible for both designand construction. No definition is given of the method of measuring thevarious quantities, as this is not important so long as the variation ismeasured in the same way as the original item quantities, as providedin paragraph 2 of the Rules. In case of dispute it might be necessaryfor the Contractor to produce his original quantities as evidence.Paragraph 2 of the Preamble provides that the price of the principalitems shall be comprehensive but does not define which secondaryitems are to be included in particular principal items. This is dealtwith in the body of the Schedule by notes covering the various groupsof items; where only one item is involved (as in the case of Ductwork)then it is more convenient to include the definition in the descriptionof the item.


6.7Dayworks

Many variations comprise additional items the value of which cannotbe satisfactorily estimated due to uncertainty or disagreementconcerning the extent and/or the nature of the work. This applies toboth remeasured and lump sum contracts and is dealt with by costreimbursement in accordance with a Dayworks Schedule.

The Dayworks Schedule provides a list of rates to be paid for thevarious classes of labour, materials and plant used in dayworks,either in the form of a comprehensive list in the payment document orby reference to a standard Schedule published by an industry body.Probably the most useful schedule for construction work in the UK isthe “Schedules of Dayworks carried out incidental to Contract Work”published by the Federation of Civil Engineering Contractors (FCEC).This consists of 4 schedules, 3 of them (Schedules ‘1. Labour’, ‘2.Materials’, and ‘4. Supplementary Charges’ for items such astransport and sub-contracts) give definitions of net cost and state anddefine percentage additions to be made to those net costs, while thefourth (Schedule ‘3. Plant’) comprises an extensive list of constructionplant items (in 1986 it was 26 pages in length) with their respectivehire rates together with definitions of the cost items included in thoserates. Although the FCEC Schedule is designed primarily for use incivil engineering work, it is written in a way which makes itapplicable to a wide range of other engineering work. As an example,the definition “Amount of wages” provides for wage payments to be “…in accordance with the Working Rule Agreement of the CivilEngineering Construction Conciliation Board of Great Britain RuleNos I to XXIII inclusive or that of other appropriate wage fixingauthorities current at the date of executing the work or where thereare no prescribed payments or recognised wage fixing authorities, theactual payments made to the workmen concerned.”(author’s italics),thus permitting it to apply to other than civil engineering contracts. Itis usual, when calling tenders, to give tenderers the opportunity tovary the percentage additions given in the FCEC Schedules as well asto add any plant items which may be required but are not included in‘Schedule 3. Plant’. To ensure that the Tender Sum reflects theamended Dayworks Schedule percentages, Provisional Sums (to whichthe amended percentages are applied) are included in the paymentdocument.

The format of the Dayworks Schedule included in the contract willdepend upon the format of the payment document, i.e. whether it is aBill of Quantities or a Schedule of Rates or a Schedule of Prices or isin some other format. When tenderers are required to price individual


rates for labour, materials and plant, all the items are listed in thePayment Document under a heading of Dayworks. When they arerequired to price adjustments to standard Schedules (such as theFCEC Dayworks Schedules) which are to be used for evaluatingProvisional Sums, then a description item referring to the standardSchedule must be drafted, together with accompanying provisionalsum items and items for percentage variations which are to be pricedby the Contractor. A model draft for the use of the FCEC Scheduleswould be as follows:—

DAYWORKSDaywork ordered by the Engineer pursuant to Clause…of the

Conditions of Contract shall be paid for at the rates, prices andpercentage additions and under the conditions contained in the“Schedules of Dayworks carried out incidental to Contract Work”(referred to as “the Schedules”) issued by the Federation of CivilEngineering Contractors current at the date of execution of thedaywork, subject to the additions or deductions set out in the followingitems.

Labour

1. Provide the Provisional Sum of £......... for Labour in day-works in accordance with the Schedules.

2. Addition/deduction* of…%† to/from* item 1.3. Provide the Provisional Sum of £......... for Materials in

accordance with the Schedules.4. Addition/deduction* of…%† to/from* item 35. Provide the Provisional Sum of £......... for Plant in

accordance with the Schedules and the additions toSchedule 3 set out herein

6. Addition/deduction* of…%† to/from* item 57. Provide the Provisional Sum of £......... for Supplementary

Charges in accordance with the Schedules.8. Addition/deduction* of…%† to/from* item 7.

*Appropriate deletion to be made by Tenderer.†Percentage to be inserted and extended by the Tenderer.

Deductions to be shown in parentheses.

The following items shall be added at the end of Schedule 3—Plant; rates for all these items shall be inserted by the Tenderer.

[When additional plant items are required, the draftsman shouldincor- porate the wording shown in italics and add the required items


in a similar format to that adopted in Schedule 3, with item numbersbeyond those currently in Schedule 3]

One of the advantages of using the FCEC Dayworks Schedules isthat it is updated when price movements or changes in legislation orlabour practices take place. This avoids disputes concerning thefinancial effects of variations ordered late in the Contract ifsubstantial price movements have taken place in, for example, itemssuch as oil (when oil prices were fluctuating wildly, amendments wereissued several times in the year). The disadvantage for contractswhich do not involve a substantial amount of civil engineering is thatthe percentage addition to wages will be varied when changes takeplace in civil engineering, even though those changes may not affectother trades.

Where the FCEC Schedules of Dayworks is not available (as ininternational or overseas contracts), the Dayworks Schedule willconsist of:—

(i) Items for each class of workmen, which must be priced by thetenderer.

(ii) A Provisional Sum for materials and a percentage to be insertedby the tenderer to cover all the additions set out in the Preambleto the Payment Document.

(iii) Items for each type and size of construction plant. Tenderers willhave to price all these items.

An alternative to (i) is to have Provisional Sum for net labour cost anda percentage (to be inserted by the tenderer) to cover all oncosts. Thisalternative will involve the Engineer’s staff in checking theContractor’s wages sheets.

6.8Cost Reimbursible Contracts

When work has to be started before all the requirements are known orbefore costs can be satisfactorily estimated or where a contractor willhave to make special efforts to meet completion dates or to overcomeproblems which cannot be easily assessed, then a contract may beentered into whereby the Employer reimburses the Contractor hisactual costs of carrying out the Works plus a percentage addition or alump sum fee. The Conditions of Contract for reimbursible contractsare generally similar to those required for other contracts, but thepayment clauses have to set out the percentage or the lump sumaddition to the cost of the Works as well as the accounting andauditing systems and the interim payment provisions. In addition,


there will have to be a full definition of the items to be included in thecost of the Works. Although this could be included in the definitionclause of the Conditions, it will usually be sufficiently lengthy to meriteither an additional clause or an Appendix or it may be included in apayment document.

When drafting the cost definition, the draftsman should takeaccount of the following matters, among others:—

Which terms of employment of the Contractor’s labour and staffare to be included in the cost;

Are advertisements and other expenses for engagement oflabour and staff to be included in costs;

Discounts obtainable when purchasing materials;Responsibility for waste of materials;Payments for plant and tools owned by the Contractor and

used on the Works;Costs of rectifying errors made by the Contractor’s staff and/or

workmen;Are insurances and financing costs to be included in cost of the

Works;Provisions for the disposal of surplus materials and plant

during the course of the contract and on completion.

Any expenditure by the Contractor which is not included in the Costof the Works will have to be covered by the percentage or lump sumaddition. The definition of the Cost of the Works therefore also defines,by implication, what is included in the percentage or lump sumaddition. That addition is usually intended to pay for the Contractor’sHead Office overheads and profit, but disputes can arise as towhether, for example, the cost of visits by H.O. personnel to the Siteare part of the Cost of the Works or covered by the addition. A similarcause of dispute can arise in connection with hire charges for the useof construction plant owned by the Contractor; should these contain aprofit element or are all profits to be covered by the addition?

Although the definition of the Cost of the Works will vary fromcontract to contract, the main items are likely to be fairly standard.The following example, based on a number of past contracts, may beof assistance to draftsmen.

COST OF THE WORKSThe actual cost of the Work shall be all costs properly incurred for

the purpose of the Works, as defined below:—


1. The wages and salaries of all supervisory staff and labourand others employed in the Works, together with otherpayroll costs and expenses including inter aliatransportation, removal, welfare facilities and otherallowances and costs which conform to the Contractor’sregularly established practices concerning his employee’sterms of employment, as well as all payments required bylaw, and the net cost of advertisements for staff andlabour.

2. Fees and expenses paid to other organisations in repect ofdesign, testing, experimental and other engineeringservices directly relating to the Works.

3. The cost of all materials (including fuel), whetherpermanent or temporary materials, when they are incurred,subject to the deduction of all reductions, rebates ordiscounts which can be obtained by the Contractor.

4. The cost of any machinery, plant, transport, scaffolding ortools purchased by the Contractor for the Works, subject tothe deduction of all reductions, rebates or discounts whichcan be obtained by the Contractor.

5. The cost of hire of any mechanical plant or of any non-mechanical plant or equipment owned by the Contractor orby any subsidiary or by any group or company in which theContractor has a controlling interest at rates published bya plant hire and/or an equipment suppliers’ associationapproved by the Engineer, or at analogous rates to suchpublished rates where specific rates for a particular itemare not included in such publications. All subject to areduction of 10% before inclusion as part of the Cost of theWorks.

6. The cost of hire from external sources of any mechanical ornon-mechanical plant or equipment at the invoice value ofthis hire, subject to all reductions, rebates or discountswhich can be obtained by the Contractor.

7. The cost of carriage of all mechanical and/or non-mechanical plant or equipment on to the Site and theirremoval when no longer required, and the cost of anyoffsite repair or maintenance except insofar as the cost ofsuch repair or maintenance is covered by hire rates for suchmechanical or non-mechanical plant or equipment.


8. All payments to subcontractors approved by the Engineer.9. Temporary offices, stores and compounds erected for

carrying out the Works on or adjacent to the Site or atother locations instructed or approved by the Engineer.

10. Fees and other charges paid to local or other authoritiesand statutory undertakers.

11. Premium and other contributions for the insurance of theWorks and all other insurance liabilities required inaccordance with the Conditions of Contract where notelsewhere covered in this definition of the Cost of theWorks.

12. The costs of visits to the Site by the public, VIP’s and thelike, when those visits are in accordance with aninstruction by the Engineer or approved by him prior tosuch visit.

13. Bonds or guarantees obtained on the instructions of or atthe request of the Employer or the Engineer and suchbonds or guarantees in respect of site personnel as areobtained in accordance with the regularly establishedpractices of the Contractor.

14. All other costs properly incurred for the purpose of theWorks which are approved by the Engineer eitherpreviously or subsequently to their being incurred, as wellas minor payments for miscellaneous services.

15. In the event that the Contractor shall sell or otherwisedispose of any materials or plant or other items used forthe purpose of the Works, any actual or notional incomeresulting from such sale or disposal shall be credited indetermining the Cost of the Works.

16. The Cost of the Works shall not include any costs arising asa result of—

(a) deliberate or irresponsible acts of negligence by theContractor or his servants or agents, and/or

(b) any contravention by the Contractor or his servants oragents of any law or statute or of any Statutory Instrumentor Regulation made thereunder.

When the addition is a percentage, no further payment document isrequired; profit and overheads on any variation in the cost of the workwill be covered by a comparable variation in the sum calculated for


the percentage addition. If the addition is a lump sum, then variationsin the Works which are made by the Employer (either directly orthrough the Engineer), and which result in an increase in the cost ofthe work, may give rise to claims by the Contractor for an increase ofthe lump sum.

Lump sum additions may be either a fixed sum irrespective of thecost of the work or a sum which reduces if the Cost of the Worksexceeds a target figure and increases if the Cost is less than thetarget, the latter arrangement being known as a Target PriceContract. Obviously, if the Employer makes changes to the extent ofthe Works which result in an increase in the Cost then the Contractoris likely to claim an increase in the Target Price and a correspondingincrease in the lump sum addition. It is, therefore, necessary to includein the contract a detailed estimate of the Target Price or (in the caseof a fixed lump sum addition) of the expected cost of the Works. Thereshould also be a provision whereby the lump sum may be varied up ordown if the extent of the Works is increased or reduced by theEmployer by more than a specified amount, but not if the variation isdue to natural or other causes provided for or implied by the Contract.It must be appreciated that cost reimbursible contracts are notnecessarily free of payment disputes. A prudent draftsman will,therefore, safeguard the contracting parties by including costdefinitions and estimates as appropriate.


CHAPTER 7Miscellaneous Documents

7.1Other Contract Documents, Bonds, and Guarantees

Previous chapters have dealt with the drafting of Conditions ofContract, Specifications and Payment documents. These form themain bulk of the documentation in engineering contracts, but thecontract also requires an offer or tender from the Contractor and anacceptance by the Employer, these being often confirmed by a formalcontract Agreement. In addition, many contracts require the provisionof a Performance Bond and there may be requirements for on-demandbonds against advance payments and for retention, as well asguarantees by corporate groups where the contract involves asubsidiary or a consortium of subsidiaries of group members.

In theory bonds may be entered into by an individual, but inpractice they are invariably given by a bank or insurance company.Contractors have regular arrangements for the provision of bonds bythese organisations, and Employers are usually confident that suchbanks and insurance companies will have adequate resources to meetthe bond if it should be called. The author has never heard of anymodern contract which has been guaranteed by an individual,although some standard forms of bond still make provision for thiseventuality.

Although the bonding bank or insurance company enters into anagreement with the Employer to pay him certain sums if there is afailure by the Contractor to comply with particular provisions of theContract, the bond agreement does not normally provide for anypayment or other consideration to pass from the Employer to thebonding organisation, even though the Contractor makes a payment(by a separate agreement) to the bonding organisation and theEmployer may reimburse that payment to the Contractor. In order tomake the agreement between the bonding organisation and theEmployer enforceable in law it will, in the absence of consideration,

have to be in the form of a deed. Section 20 of the Solictors Act 1957makes it a criminal offence for anyone who is not a solicitor to draw upa deed in the course of business (i.e.“in expectation of any fee, gain orreward”) and engineers cannot, therefore, prepare a deed for a clientalthough they could prepare a draft for a solictor to draw up a deed.Although this only applies in English law, it is advisable for engineersto avoid drafting bonds or similar documents where they lack specialexpertise, particularly in international contracts where clients mayhave special local legal requirements.

To avoid the use of deeds, some oil companies arrange to include anominal consideration (say £10) in all bonds, to be paid by themdirectly to the guarantor.

In the UK it is not uncommon for clients to require a performancebond to be provided by a successful tenderer, although large publicauthorities often consider pre-qualification of proposed tenderers moreeconomical; they have found it expensive to spend substantial sums onreimbursing contractors for the cost of bonds which are very rarelycalled. When a form of performance bond is required to accompanytender documents, it is advisible for the draftsman to adhere to one ofthe standard forms, such as those which accompany the ICE or theFIDIC Conditions.

In recent years it has become the practice among large contractorsto split their business into a main holding company with a group ofsubsidiary companies each operating in a particular branch ofcontracting (such as civil engineering, mechanical and electricalservices, process plant construction, etc.) as well as subsidiarycompanies for different parts of the country. Each of the subsidiarycompanies would have a much smaller capitalisation than the parentcompany. For large works it is common for the subsidiaries of anumber of different groups to combine into a joint venture orconsortium, the organisation being effectively a partnership of limitedcompanies rather than a separate company. In these circumstancessome clients believe that a contractor who is a group subsidiary or aconsortium of subsidiaries of different groups should have theirperformance guaranteed by the holding company or companies of thegroup or groups. The form of such a guarantee would be that of anagreement under hand (i.e. not a deed), it being based upon theconsideration that the guarantee would be given by each of theholding companies in return for the award of a contract to itssubsidiary company, provided that it is entered into before thecontract is awarded. Generally such group guarantees are onlyrequired in connection with large works where the Employer is apublic authority or a large private company. In such a case the form ofguarantee will normally be prepared by the Employer’s legal


department. It is preferable for engineers to avoid the drafting of suchdocuments in which they have no special expertise, but if the form hasto be drafted, then it should include the following matters:—

(a) The guarantor company shall indemnify and keep indemnified theEmployer against the consequences of any failure by its subsidiarycompany to fully perform the requirements and provisions of theContract.

(b) The liability of the guarantor shall not be greater than its liabilityif it had itself been responsible for the performance of theContract.

(c) If the subsidiary company fails to perform and the Employerterminates the Contract and requires to enforce the guarantee,then the guarantor is to be given the opportunity of completingthe Works in the terms of the Contract.

(d) No alteration in the subsidiary company’s obligations nor anyarrangement with the subsidiary company nor any forbearance ofany of the actions of the subsidiary company should release theguarantor from his obligation.

If the client wishes to have the guarantee in the form of a deed, sothat it will be effective for a period of twelve years (instead of sixyears for a contract under hand) then it must, of course, be drawn upby a solicitor.

7.2Tender Forms

Most engineering contracts are based upon or refer to a formal tenderby the Contractor; even where the terms of the contract have beennegotiated between the Employer and a single contractor it is commonfor the contractor to make a formal offer on conclusion of thenegotiations so that the contract is based upon an offer and anacceptance, with stated terms of payment, to enable the contract to beeither under hand or in the form of a deed. A large proportion ofengineering contracts are the results of competitive tendering basedupon documents issued by the Employer which include a standardTender Form for submission of the formal tender. A number ofstandard Conditions have tender forms annexed to them (ICEConditions, FIDIC Civil and FIDIC M & E Conditions) which relatespecifically to those Conditions and in each case there is an Appendix(which forms part of the Tender) setting out specific particulars ofmatters which are dealt with only in a general way in the Conditions.An alternative method of providing the information is adopted in the

MISCELLANEOUS DOCUMENTS 215

GC/Works/1, which requires a document described as ‘Abstract ofParticulars’ to be included in the contract documentation. Thisdocument would normally contain the amendments and additionsrequired to the General Conditions as well as any other specialrequirements and the specific particulars which are required inconnection with matters dealt with only generally in the Conditions ofContract. No appendix to the Tender Form is, therefore, requiredwhere an Abstract of Particulars is provided. The information to begiven in the appendix to the Tender Form or in the Abstract ofParticulars will, of course, depend upon the requirements of theparticular contract and of the Conditions of Contract used.

There are occasions when it is necessary to amend the tenderdocuments during the tender period, either because furtherinformation has been made available (such as revised data on groundconditions or changes to the plant which is to be installed) or todevelopments in the client’s requirements. There may also be requestsfor clarification from tenderers or errors may have been discovered insome of the documents. In the case of competitive tendering it isessential (in order to avoid complaints or objections from tenderers)that any amendments to the tender documents should be notified inwriting concurrently to all tenderers, this notification being referredto as an amendment letter or a circular letter. The amendment lettershould be drafted as an instruction to the tenderer to amend each ofthe documents referred to and should set out the specific wording ofthe amendments to particular sections, paragraphs and sentences orlines in each of those documents. In the case of drawings, the previousdrawing number and revisions suffix should be “cancelled andsuperseded”, the new drawing number and revision suffix“substituted” and copies of the revised drawing attached. Theamendment letter should be accompanied by a receipt form and aninstruction to the tenderer to return the receipt as soon as possible, asacknowledgement that the amendment letter has been received andwill be incorporated in the tender. At the time when the lastamendment letter is issued or at the end of the period available forissuing amendment letters, a revised Tender Form should be issued(under cover of an amendment letter) incorporating a statement thatthe tender documents have been amended in accordance withamendment letters listed and that the tender is based upon theamended documents.

The wording of the Tender Form will vary considerably, dependingupon the type of offer, the character of the work and the Conditions ofContract. Where a standard Tender Form accompanies standardConditions then that form (with amendments,where necessary) will


obviously be adopted, but otherwise a form will have to be drafted; theitems to be included, in their logical order, are:

(1) a recital setting out the documents (both Employer’s andTenderer’s documents) forming part of the tender and confirmingthat those issued by the Employer had been seen by the tenderer;

(2) an offer to perform the work set out in the documents for aparticular sum or sums; alternatively, to carry out the work for asum or sums calculated in accordance with the provisions of anamed document such as, for example, “the Schedule of Rates” or“the Bills of Quantities”;

(3) a statement that the tenderer will complete the work in a specifictime or times; alternatively, that the tenderer will complete thework in a time or times set out in named document, such as ‘theAppendix hereto’;

(4) a statement agreeing that the tender will remain open for a statedperiod from the time for submission;

(5) a statement agreeing that until such time as a formal agreementis entered into between the Contractor and the Employer, theTender and the Employer’s written acceptance thereof shall forma binding contract;

(6) when the Conditions of Contract require it and it is to form part ofthe contract, a statement that the tenderer will provide aPerformance Bond (or a Guarantee) for an amount equal to astated percentage of the Tender sum within a stated period ofreceiving a request for it from the Employer.

When tenders are called by public authorities it is usual to add astatement that the tenderer understands that the Employer is notbound to accept the lowest or any tender. It is not necessary for this tobe included, but it is usually considered desirable to assist in avoidingdisputes if the Authority does not accept the lowest tenderer.

Some Conditions of Contract include a condition that theContractor shall provide a performance bond or guarantee ‘if thisrequirement is included in the Tender’. The provision in the Tenderfor this bond is, therefore, only required when there is a correspondingcondition in the Conditions of Contract and when the Employerwishes to have a performance bond. As pointed out above, manypublic authorities find that they rarely have to call upon theperformance bond and it is, therefore, more expensive to pay for abond on all contracts rather than to meet the additional cost of therare contract which involves contractor’s failure.

There has been considerable discussion in the UK concerning thepossibility or the desirability of holding a tenderer to his tender for


the period of tender validity. The tender offer is not a contract until itis accepted and, therefore, it is not possible to enforce any term, suchas the validity period. It is also contended that contract arrangementsare likely to be unsatisfactory if the contract is made with anunwilling contractor and that, for this reason, a tenderer should notbe forced into a contract which he realises would be to his severedisadvantage. Most tenderers, of course, are only too willing to havetheir tenders accepted! For these reasons many U.K. tender forms donot include a term concerning period of tender validity. However, it isusual to provide a tender validity period in international contractsand, in order to enforce this, the tenderer will be required to eitherdeposit a sum of money (usually referred to as Earnest Money) or(more commonly today) deposit a bond for a stated sum from a bank orinsurance company, the bond being under seal where this is requiredby the law of the Employer’s country. Requirements concerningEarnest Money or Tender Bond are not usually included in the TenderForm, but tenderers are instructed to provide it and informed that theirtender will not be considered unless it is provided.

Where an Appendix is attached to the Tender Form (in order to givespecific information not included elsewhere in the tender documents)then it is essential to say, on the Tender Form, that “The Appendixforms part of the Tender”. The following list forms a useful aidemémoire of items which may be required in the Appendix:—

(1) Completion periods and liquidated damages per day or week inrespect of each of the completion periods.

(2) Limit of liquidated damages (where this is to be included).(3) Particulars of bonuses, if applicable.(4) The Maintenance Periods or the Periods of Defects Liability (there

are sometimes different periods for different parts of the Works).(5) Minimum amount of third party insurance.(6) Amount of Performance Bond or Guarantee (if any) as percentage

of Tender Sum.(7) Percentage for adjustment of P.C. sums.(8) Percentage of the value of material to be included in interim

certificates.(9) Particulars of materials which are to be stored off site but whose

value is to be included in interim certificates.(10) Percentage of retention.(11) Limit of retention.(12) Minimum amount of interim certificates.


(13) Time for payment after issue of certificate.

It is unlikely that all the foregoing items will be required for inclusionin the Appendix; some contracts may require other items which arenot of general interest such as the Method of Measurement used in anaccompanying Bill of Quantities. Generally, the value or percentagesin the various items are inserted by the Employer or his consultingengineer, but the item of ‘Percentage for adjustment of P.C. sums’ hasto be inserted by the tenderer; in many tenders the tenderer is alsorequired to insert the time or times for completion. The items to beinserted by the tenderer should be clearly marked (usually with anasterisk) and a note included in the Appendix stating that the tendereris to insert the figures in those items.

7.3Acceptance and Formal Agreement

When an acceptable offer has been received by the Employer, whetherby competitive tender or by negotiation, then a formal acceptance ofthe offer must be made if he wishes work to proceed. In the UK this isusually in the form of a simple letter of acceptance which oftenprovides for a formal Agreement to follow, but in some other countries(particularly where Earnest Money or a Tender Bond is provided) theacceptance may be in the form of an instruction to the tenderingcontractor to send his authorised representative to sign a formalagreement at a specified date and time. A typical UK acceptanceletter might read—

We are pleased to inform you that we have decided to acceptyour Tender dated….[or ‘the offer set out in your letter dated.....’]for the construction of A formal contract Agreement will beprepared as soon as possible, but meanwhile your tender [or‘offer’] and this letter of acceptance will constitute a bindingcontract between us.

If the Employer requires a performance bond, a further sentenceshould be added instructing the tenderer to supply such a bond withina stated period, say fourteen or twenty one days.

The main advantage of a formal agreement in engineering contractsis that it specifies and lists the documents of the contract and thusexcludes other documents which may have been introduced intonegotiations or which (such as “Instructions to Tenderers”) are notintended to form part of the contract. It thus fully defines the extent


of the contract. If the Agreement is in the form of a deed then there isthe further advantage that the limitation period is extended from sixyears to twelve years.

Engineers are not often required to draft formal agreements butwill usually have to tailor a standard agreement form to therequirements of the Contract. A form of Agreement for an engineeringcontract will consist of the following items:—

(1) A statement of the date and of the titles and addresses of theparties.

(2) A recital commencing with the words “Whereas…” and stating thatthe Employer desires that the ......[title of the Works] be executedand has accepted the Contractors Tender.

(3) A statement of the substance of the contract commencing with thewords “NOW THIS AGREEMENT PROVIDES as follows:”.

(4) The signing clause, commencing “IN WITNESS whereof theparties hereto have caused this Agreement to be signed by theirduly authorised representatives on the date first above written.”,followed by lines for the signature and the names of the partiesand for witnesses.

Item 3 of the Agreement will usually consist of four clauses as follows:—

(i) A clause stating that in the Agreement words are as defined in theConditions of Contract.

(ii) A list of the documents, preceded by introductory wording such as“The following documents shall be read and construed as part ofthis Agreement:”.

(iii) A statement that, in consideration of the payments made by theEmployer the Contractor covenants to execute the Works inaccordance with the Contract.

(iv) A statement that the Employer covenants to pay the Contractorthe prices prescribed by the Contract for the execution of theWorks.

The precise wording of the Agreement will depend upon therequirements of the contract; in many, the wording adopted instandard forms can be used, modified to suit the actual requirements.Although some standard forms (such as the I.Chem.E. Agreementform) may appear to vary in some respects, it will be found that theyall contain the items listed above together with modifications andadditions to suit the circumstances for which they were drafted.


7.4Non-contractual Documents

Prior to the formation of a contract it is usually necessary to providecertain documents which are related to the contract but which do notform part of it. In the case of a negotiated contract there will becorrespondence and preliminary documents which are subsequentlyamended or superseded. The principles of drafting apply equally tothe preliminary documents. When the contract is based upon acompetitive tender, a number of documents are usually issued whichare concerned with the process of tendering and which do not formpart of the contract; in the case of public authorities these tenderdocuments are often of a semi-standard nature.

7.4.1Pre-qualification

In the past it was common for public authorities to call open tenders, i.e.they would advertise and allow anyone to tender for the advertisedcontract. In many cases this resulted in unsatisfactory tenders or inthe work being carried out by incompetent or financially unsoundcontractors. The practice today is for public authorities to maintainlists of contractors who are qualified for particular types and sizes ofcontract and allow tenders only from contractors on the list or, in thecase of large contracts, from a small number of contractors speciallyselected from those on the appropriate list. In order to be included inan authority’s list of qualified contractors, an applicant must providethe information set out in a standard questionnaire issued by theAuthority and may be subject to further enquiries as a result of theanswers given. Engineers are sometimes required to prepare suchquestionnaires for a client; the questions are usually based on thefollowing items, but they may vary according to the class of work andthe type of contract:—

(1) Type of work and size and type of contract for whichprequalification is sought.

(2) Corporate particulars of the applicant, such as title and registeredaddress, particulars of company registration, of capital, of whethera member of a group and whether there are any subsidiarycompanies, particulars of management control, etc.

(3) Classes of work carried out by the company and particulars ofrelevant recent contracts and references from clients.


(4) Particulars of staff and other employees (curriculum vitae ofsenior staff to be included) and of any consultants regularlyemployed; in some cases an organisation chart may be called for.

(5) Lists of plant and/or manufacturing facilities owned.(6) Audited financial accounts, usually for the past three years.

Many authorities have special requirements and the actual questionswill need to be drafted in relation to these and the policy of theauthority concerned. Overseas authorities often have special localrequirements such as registration in the country concerned,acceptability of bankers, etc.

7.4.2Invitation and Instructions to Tenderers

When tender documents are issued they are usually sent under coverof a formal “Invitation to Tender”. This may be in the form of a simpleletter listing the documents which are enclosed with it and giving thetender date. It is more usual, however, to give fuller particulars eventhough these may repeat information given in the “Instructions toTenderers”. The information given in the Invitation to Tender isusually limited to the following:—

(a) An introductory paragraph describing briefly the type and extentof the work.

(b) The type of contract, e.g. lump sum or remeasurement andwhether manufacture and erection or construction only or designand build.

(c) Tender date.(d) The period for which the tender is to remain valid after the tender

date and whether earnest money or a tender bond is required.

The tender documents and the Invitation to Tender are invariablyaccompanied by a document entitled “Instructions to Tenderers” orsometimes “Instructions for Tendering”. These Instructions do notnormally form part of the contract, although there are a few publicauthorities (particularly overseas) who do require the Instructions toform part of the contract. The Instructions to Tenderers are intendedto set out the detailed tendering requirements and usually include thefollowing items (set out in logical order):—

(1) An introductory paragraph giving the title of the Works and avery brief description of the type of work concerned.

(2) Instructions concerning submission of the tender, dealing with:


(i) Completion of the relevant parts of the documents (typically“Tenderers shall complete the Form of Tender, and eachseparate item in the Schedule of Prices clearly and in ink”);

(ii) the type of envelope or envelopes in which the tender is to besubmitted;

(iii) the address to which the tender is to be sent together with thedate and time by which the Tender is to be submitted (to allowfor any delay in completion and approval of the documents it iscommon to give the date in the Invitation to Tender and tomerely refer to that date in the Instruction);

(iv) when all the documents which are to be submitted are notbound in one volume, a list of the documents which are toaccompany the Tender;

(v) requirements for return of documents not returned with theTender, together with the address to which they are to bereturned; this address will not usually be the same as theaddress for submission of the Tender (although it is sometimesmerely a different room in the same building) but is commonlythe address of a consulting engineer who has prepared thedocuments).

(3) A statement that tenders shall be submitted strictly inaccordance with the tender documents and that failure to complywith this requirement may invalidate the tender.

(4) When appropriate, instructions concerning the submission ofalternative proposals, including the following matters:

(i) alternative proposals will only be considered if a tender issubmitted in accordance with the Tender Documents;

(ii) alternative proposals shall be in the form of a tender with fullypriced Schedule or Bill and sufficient drawings and explanatorymatter to enable them to be technically assessed;

(iii)

when alternative proposals are for a substantially differentdesign, the tenderer may be permitted to discuss his proposalwith the consulting engineers or designers to enable theTender to meet the general design requirements.

(5) Provisions to enable tenderers to raise queries concerning thedocuments; these must be in writing; replies will be circulated to alltenderers.

(6) Provisions for the client to amend the documents during thetendering period and also to extend the tender period, if required.

(7) Particulars of any reports or other documents to be madeavailable to tenderers, either for inspection at a specified address


or by copies issued with the tender document (typically—designreports, site investigation reports, and the like).

(8) Particulars of documents which are to accompany the Tender(such as preliminary programmes and method statementsshowing the proposed manner of carrying out the work) which areintended for guidance only and are to be non-contractual.

(9) Paragraphs drawing attention to particular points in the tenderdocuments, such as whether there is provision for variation of theprice to deal with inflation, any provision for an initial advance formoblisation, whether alternatives dates for completion are to beoffered, any requirements for performance bond and any otherbonding (such as for retention), any applicable legislation whichmust be complied with, etc.

(10) Arrangements for announcing the results of tendering.(11) Paragraphs stating that the cost of tendering is to be entirely

borne by the tenderer and that the Employer does not bindhimself to accept the lowest or any tender.

Although these items are those usually included in the UK, manyinternational authorities (e.g. the World Bank) require the inclusionof a wide variety of other items such as the source of the funds forcarrying out the work, the languages of the tender, the currencies ofthe tender and of payments under the contract, the legal authority ofthe person signing the tender, the procedure for tender opening, theprocedure which will be adopted for evaluation and comparison oftenders, the procedure for award of contract, etc. As mentioned earlier,many Authorities have model forms of Instructions to Tenderers andthe draftsman will be bound to follow the layout, requirements anddetailed drafting of the model, but will have to add to and vary it to suitthe particular contract procedures and documents. Although theInstructions to Tenderers does not usually form part of a contract, itmust not contain matter which might be misleading to tenderers andwhich could, therefore, lead to claims of misrepresentation.


Bibliography

1Writing

Engineering draftsmen are advised to read the following two books toassist in writing clear English:—

The Complete Plain Words by Sir Ernest Gowers. Her Majesty’sStationery Office and Pelican Books. 1962.

Mind the Stop by G.V.Carey. Cambridge University Press. 1939.Although the latter book is devoted exclusively to the use of

punctuation, it does not deal with the punctuation of marshalledsentences for document drafting.

2Legal Drafting

Books on the general aspects of legal drafting, as distinct from thedrafting of specific legal documents, are few and far between. Onlythree have been identified as of interest to engineers.

The Elements of Drafting by E.L.Piesse and J.H.Aitken. The LawBook Company Ltd. 1981.

This is a short book with a concise text which covers most of theaspects that engineers are likely to require.

The Fundamentals of Legal Drafting by Reed Dickerson. Little,Brown and Company. 1986.

This was written at the request of the American Bar Association. Itincludes philosophical and literary comments on the use of language.

Drafting by Stanley Robinson. Butterworth and Company(Publishers) Ltd. 1980.

The first half of this book covers the same ground as Piesse andAitken.

The second half deals with the drafting of specific legal documents.

3Conditions of Contract

The following list covers most of the published standard forms in usein the UK for domestic and international contracts.

(i)UK Government Contracts

Form GC/Works/1. General Conditions of Government Contracts forBuilding and Civil Engineering Works. 1977.

Form GC/Works/2. General Conditions of Government Contracts forBuilding and Civil Engineering Minor Works. 1980.

Form C1001. General Conditions of Government Contracts forBuilding, Civil Engineering, Mechanical and Electrical Small Works.1982.

All are published by Her Majesty’s Stationery Office. They are usedmainly by the Property Services Agency; other government officesoften use one of the standard forms listed below.

(ii)Civil Engineering

Conditions of Contract and Forms of Tender, Agreement and Bondfor use in connection with Works of Civil Engineering Construction.(ICE Conditions of Contract). Fifth edition as amended 1986.

Conditions of Contract, Agreement and Contract Schedule for use inconnection with Minor Works in Civil Engineering Construction.1988.

Conditions of Contract and Forms of Tender, Agreement and Bondfor use in connection with Ground Investigation. 1983.

These 3 are published by the Institution of Civil Engineers (ICE),the Association of Consulting Engineers (ACE) and the Federation ofCivil Engineering Contractors (FCEC).

Conditions of Contract for Overseas Works Mainly of CivilEngineering Construction with Forms of Tender and Agreement. TheACE, the ICE, and the Export Group for the Construction Industries.1956.

FIDIC Conditions of Contract for Works of Civil EngineeringConstruction. Part I General Conditions with Forms of Tender andAgreement. Part II Conditions of Particular Application withGuidelines for Preparation of Part II Clauses. FédérationInternationale des Ingénieurs-Conseils. 1987.

(iii)Mechanical and Electrical Engineering

Model Form of General Conditions of Contract including Forms ofAgreement and Guarantee recommended by the Institution ofMechanical Engineers, the Institution of Electrical Engineers and the

226 BIBLIOGRAPHY

Association of Consulting Engineers for use in connection with HomeContracts—With Erection. (Model Form A). Institution of ElectricalEngineers (IEE). 1982.

Model Form of General Conditions of Contract including Form ofAgreement recommended by the Institution of Mechanical Engineers,the Institution of Electrical Engineers and the Association ofConsulting Engineers for use in connection with Export Contracts forSupply of Plant and Machinery (Electrical & Mechanical). (ModelForm B1). IEE. Fifth Edition 1981.

Model Form of General Conditions of Contract including Form ofAgreement recommended by the Institution of Mechanical Engineers,the Institution of Electrical Engineers and the Association ofConsulting Engineers for use in connection with Export Contracts.Delivery FOB or CIF or FOR with Supervision of Erection. (Electrical& Mechanical). (Model Form B2). IEE. Fifth Edition 1981.

Model Form of General Conditions of Contract including Form ofAgreement recommended by the Institution of Mechanical Engineers,the Institution of Electrical Engineers and the Association ofConsulting Engineers for use in connection with Export Contracts(including Delivery to and Erection on Site of Electrical andMechanical & Mechanical Plant). (Model Form B3). IEE. ThirdEdition 1980.

Model Form of General Conditions of Contract recommended by theInstitution of Mechanical Engineers and the Institution of ElectricalEngineers for the supply of Electrical and Mechanical Goods, otherthan Electric Cables (Home—without erection). (Model Form C). IEE.1975.

Model Form of General Conditions of Contract recommended by theInstitution of Electrical Engineers for Home Cable Contracts withInstallation. (Model Form E). IEE. 1982.

FIDIC Conditions of Contract for Electrical & Mechanical Works(including Erection on Site) with Forms of Tender and Agreement.Fédération Internationale des Ingénieurs-Conseil. 1987.

(iv)Chemical Engineering

Model Form of Conditions of Contract for Process Plants Suitable forreimbursible contracts in the United Kingdom. Institution ofChemical Engineers (I.Chem.E). 1976.

Suitable for lump-sum contracts in the United Kingdom. I.Chem.E.1981.

BIBLIOGRAPHY 227

(v)Building

Standard Form of Building Contract. JCT80.—Local Authorities with Quantities. 1986.—Local Authorities without Quantities. 1986.—Local Authorities with Approximate Quantities. 1986.—Private with Quantities. 1986.—Private with Approximate Quantities. 1986.—Private without Quantities. 1986.Standard Form With Contractors Design. CD81. 1986.Intermediate Form of Building Contract. IFC84. 1986.Agreement for Minor Works. 1987.Fixed fee form of prime cost contract. 1976.Agreement for renovation grant works where architect is employed.

1974.Agreement for renovation grant works where architect is not

employed. 1974.All published for the Joint Contracts Tribunal (JCT) by RIBA

Publications Ltd.ACA Form of Building Agreement (2nd. Edition). Association of

Consulting Architects. 1984.BP88 Form of Building Agreement. British Property Federation.

1984.

4Conditions of Sub-contract

These published subcontract conditions are drafted for use with thoseConditions of Contract (listed above) to which they refer.

Form of Sub-contract designed for use in conjunction with the ICEGeneral Conditions of Contract. The Federation of Civil EngineeringContractors. 1984.

JCT80. Nominated Sub-Contract for sub-contractors who havetendered. NSC/4.

JCT80. Nominated Sub-Contract for sub-contractors who have nottendered. NSC/4a.

Both published for JCT by RIBA Publications Ltd. 1986.Domestic Sub-Contract Conditions for use with JCT80. DOM/1c.Conditions for domestic sub-contracts under IFC84. IN/SC.Domestic Sub-Contract, Articles for use with Contractor’s Design

1981. DOM/2.These three by Building Employers Confereration. 1986.

228 BIBLIOGRAPHY

5Standard Specifications

The following are published standard specifications drafted for usewith the Conditions of Contract stated. They incorporate thenecessary contractual provisions to enable them to form part of acontract which is subject to the stated Conditions, but requiremodification if they are to be used with other Conditions. They are notcomparable to British Standard Specifications, which do not includecontractual provisions.

Specification for Highway Works. For use with ICE Conditions. HerMajesty’s Stationery Office. 1986.

Civil engineering specification for the water industry. For use withICE Conditions. Water Research Association. 1984.

Building and Civil Engineering Minor Works. For use with FormGC/Works/2. Property Services Agency. 1986.

BIBLIOGRAPHY 229

230

Index

Abbreviations, viii–xAbrahamson, Max, 18Abstract of Particulars, 215Acts of Parliament

Clean Air Act, 163Law of Property Act 1925, 35, 71,94Motor Car Act (Australia), 33Solicitors Act 1957, 213

Adjectives, 32–3Agreement, 212, 219, 220Alterations Additions and Omissions,

89, 90Ambiguity, 13–15, 17, 19, 28, 56, 70Ambulance facilities, 162Amount of Wages, 205“And”, 36–9Annexures, 69“Any of the following”, 43“Approved”, 7Arbitration, 86, 127–9Architects, 86Assignment, 94Assignment and Sub-letting, 89Auditors, 86Australia, 33

Bankruptcy, 16, 117, 122, 124Banks, 212, 217Barnes, Sir Gorell, 5Baxter formula, 77“Because of”, 42–2Bills of Quantity

accuracy, 54contents, 185, 186

Method of Measurement and, 9,61, 83, 185, 186, 218payments and, 181, 183, 184–90,196Preamble, 9, 55, 83, 187–90preparation, 185

Binding, 82Bonding organisation, 212–14Bonds, 123, 124, 196, 212, 213, 217,

219Brackets, 50, 51Breach of contract, 119, 122British Standards, 22, 142, 143, 144,

145, 146, 147, 150, 172B.S. 778, 144B.S. 1377, 145B.S. 4197, 165B.S. 5228, 31, 146, 165B.S. 6164, 146Building contracts, 1, 86“But no other”, 43

Canteens, 158Capital letters, 36Carey, G.V., 49Catering facilities, 106, 107, 158CCC/Wks/1, 92Certificates, 100, 116, 125–7, 172,

195Civil engineering contracts, 86, 103Civil Engineering specification for

the water industry, 143Clarity, 5, 7, 13–15, 56, 70, 78Clauses, 61, 62, 79

description of, 55

231

previous, 116Collections, 186Colon, 46–7, 66, 68Colon dash, 68Comma, 48–51, 68Commonwealth, 71Communication, 7–8Company Representative, 85Completion period, 126Conciliation, 128–30Concise Oxford Dictionary, 22, 50Conditions, 53, 54Conditions of Contract

Additional Conditions, 83amendments, 82basis of, 86–7commencement, 98–9completion, 99, 113–16formulae, 77labour, 106–8logic of, 86–7, 90–2loopholes in, 10maintenance, 115–17Conditions of Contract—contd.marginal notes, 79materials, 107–10parties liabilities, 84programme, 98–9provisos, 52punctuation, 46purpose, 84–6standard forms, 3, 9, 68, 82–3, 84vagueness, 15workmanship, 107–10

Construction and Inspection, GeneralRequirements for, 170

Construction law, 3Construction Methods and Good

Housekeeping, 172Contents list, 6, 62, 81Context, 12–13Contra-charges, 116, 117, 118, 119,

125, 181Contractors:

definition, 93, 94design by, 101

duties of, 87, 88, 89, 91, 99–106,170, 178information and, 154limitations on, 3, 136liquidation, 117monitoring, 103remedies, 117role of, 86superintendence, 102see also following entry

Contractor’s Temporary Works, 172Contractor’s Work Areas and

Facilities, 157Contract Price, 103, 104, 113, 116,

118, 123, 181 Contracts

documents forming, 97drafting, responsibility for, 1–2drafting skills, 2, 4, 6–7extent of, 1intentions of parties, 5–6planning, 99types of, 181–4verbal, xvsee also documentation

Coode, George, 25, 26, 40, 52Cost of the Works, 208–12Cost Reimbursible Contracts, 207–12Cross references, 12, 28, 55, 131

Damage, 105Dash, 48, 68Date of Commencement of Works, 36Dayworks, 204–8Defects, 115–17Defects Liability Period, 94, 115Definitions, 70–72, 73–5, 76–6, 93–4,

208Description and Extent of Works, 72,

167Description clause, 152Description of Site, 155Design, 101, 133, 166–72, 195Design and build contracts, 132, 133,

167, 195Designer, 4, 5Design of Permanent Works, 168

232 INDEX

Determination, 117, 121Dickerson, Reed, 8, 30, 53, 74, 75Disputes, 60, 86, 87, 127–30Disruption of work, 183Documentation

authorship, 11checking, 18, 29components, xv–1, 58–8context, 12–13conventions, 60–61copies, numbers of, 103framework, 58–9interpretations, 17–18layout, 78–82logic and, 56–7meaning, 13non-contractual, 220–5order, 56–7purpose, 7–8, 40readability, 56, 61, 70, 154social organisation, 13standard, 58see also names of individualdocuments

Drafting plan, 6Drainage, 12Drawings, 1, 3, 66, 97–8, 131, 150,

170, 175Dust, 163, 166

Earnest Money, 217, 218Ejusdem generis, 31Electrical contracts, 89, 103, 115Electrical Systems, 140, 141Electricity supplies, 157Employers

definition, viii, 93duties of, 87, 88, 98, 117liabilities, 125power of, 116–18remedies, 116–18risks, 91, 120role of, 86

Engineersaccommodation for, 158definition, viiiduties of, 87, 95, 96

functions of, 96information provided to, 103powers of, 95–6, 109staff, 160, 161

Engineers Office Facilities, 161Engineers Offsite Facilities, 161Engineer’s Representative, 95European Community, 195Excavated material, 104Exceptions, 53, 54Explosives, 157Extensions of Time, 116Extent of Works and Contractors

Responsibilities, 140“Extra over”, 194

FIDIC Civil Conditions“approved”, 7clauses, description of, 55Employer, 93international contracts, 107punctuation, 48

First aid room, 162Formulae, 77“Forthwith”, 45“From time to time”, 43Frustration, 117, 118

GC/Works/1arrangement, 92clauses, description of, 55Employer, 93Engineer, 95exceptions, 54provisos, 52

Gender, 36General Description and

Requirements, 140General Description of Works, 140Generality, 15–16General statement, elaborating, 31–1Glossary of Highway Terms, 22Gowers, Sir Ernest, 19, 21, 63Grammar, 19–1Group guarantees, 213, 214

Health and Safety legislation, 107

INDEX 233

Helmets, 157Highway Works, Specification, 62, 83Homonyms, 13, 14Hydraulics System, 140

ICE ConditionsAgreement Form, 1buildings, 86Employer, 93Engineer, 95punctuation, 48, 52sections, 62unforeseen difficulties, 104

“Immediately”, 45Implied terms, 8“In accordance with”, 43“In any such event”, 44“Includes”, 75, 76India, 13Information clauses, 104Instructions for Tendering, 9, 79,

222–5Instructions to Tenderers, 219Insurance, 10–11, 105 Insurance companies, 212, 217Interim payments, 183, 195, 196–9,

199–5International contracts, 98, 103, 107,

110, 123, 185, 207, 213Interpretation, 30–31, 93–5Interpretation clauses, 60, 72–2, 76,

85, 94, 95Inverted commas, 51“Invitation to Tender”, 221

Japan, 85Jargon, 2, 16

Labour tax, 121Landscaping contracts, 115Lane Rental arrangements, 90Language, 7, 8, 10, 16, 17, 28–8, 70Latin phrases, 16Law, knowledge of, 3Law of contract, 86Lavout 7, 81Legal expressions, 16, 22

Letterpress, 80Liquidated damages, 115, 116, 122Listing, 66–6, 67–8Local authorities, risks and, 92Location and Extent of Site, 72, 153,

155Logical order, 7Lump sum addition, 208, 210, 212Lump sum contracts, 119, 181, 183,

195, 198, 205

Maintenance contracts, 11Maintenance Period, 114, 115Management contracts, 1, 58Manufacturing contracts, 11Marginal notes, 62, 79Marshalling, 62–5, 67–8Materials

ownership, 109–11specification for, 10, 171supply orders, 117

Mathematical formulae, 77Meaning, 74“Means”, 75Measure and Value contracts, 181–4Mechanical contracts, 89, 103, 115Method statement, 175Methods of Measurement, 83, 187,

191Miscellaneous General Clauses, 178“Month”, 45, 71Monthly Progress Meeting, 178Mud, 163

National Water Council, 143Noise, 31, 146, 162, 164–8Notice, 90“Notwithstanding”, 43Nr, 195Nuisance, 105, 162

Oil companies, 85, 105On-demand bond, 124, 196, 212“Or” 36–9Orwell George 21Osborne formula, 77

234 INDEX

Package deal contracts, 1, 58Paragraphing, 63 Parties, definition of, 60Partnerships, 35Patent rights, 104Payment Documents, 59, 181–212Payments, 92, 122–5Payments certificates, 125Payments Schedules, 183, 195–9Performance bonds, 123, 212, 213,

217, 219Period of Maintenance, 94“Person”, 71Piesse, E.L., 39Piping, 194–5, 199Plant, ownership of, 109–11Pollution, 105, 146, 162–8Practical completion, 114Pre-ordering, 180Pricing Document, 57Prime Cost items, 89Principles of Measurement

(International) for Works ofConstruction, 185

Printing, 79, 80Process plants, 145Programming, 173–80Pronouns, 34–4Protective measures, 162, 164, 166“Provided that”, 52Provisos, 52–2Public authorities, contracts with, 1,

10, 85, 216Punctuation, 28, 45–55, 67, 78Purpose of Works, 140

Qualifications, 53, 54Quality Assurance, 171, 172Quantity Surveyor, 86

Readership, 9–11Reference books, 22Repetition, 29–9Reporting, 173–80River work, 153Roads and Bridges Specification, 22,

28, 38, 76

Robinson, Stanley, 68, 74Roget’s Thesaurus, 22Royal Institute of Chartered

Surveyors, 185Royalties, 104Rubbish, 173

Safety, 101–2, 146, 157“Said”, 42“Same”, 42Schedules of Rates, 1, 183, 190–6,

198Scotland, 95Sections, 61, 79, 88–90, 92–129Semicolon, 46–7Sentences

arrangement of, 23–6short, 27, 36

“Shall”, 40–41“Shall comply with”, 43Shore, Lord, 45Site

definition, 72, 149facilities, 157–64

Site Access and Use, 155–7, 156Site Data, 155Special phrases, 43–3Specifications

Appendix to, 70arrangement, 133–7Bills of Quantities and, 1, 59

Specifications—contd.Conditions of Contract and, 1, 17cross references, 12description and extent of work,150–3drafting, 9drawings and, 98formulae, 77framework, 136–42general section, 149–80lists and, 66, 67manufacturers, 147purpose, 129–2site, 72site description, 152–8standard forms, 83, 141–7

INDEX 235

types of, 131–4Works, 72

Specifications for Highway Works,143, 144

Stage payments, 195, 196Standard forms, 6, 82Statutes, conforming with, 102Statutory Undertakers, 129Sub-clause, 61, 62, 68, 79Sub-contracting, 103, 111–14, 178–2“Subject to”, 43Sub-letting, 90, 94Substantial completion, 114“Such”, 41–1Supply contracts, 11Surveys, 173Sweden, 85Symbols, 77

Tables, 77–7Tabulation, 63Target Price Contract, 212Tax, 90, 121Technical terms, 16–17Tender Bond, 217, 218Tender Price, 119Tenders

Acceptance, 218–21Appendix, 217authorised contractors, 220instructions for, 222–5invitations for, 221–3standard forms, 10, 214–19sufficiency, 100–1validity, 217

Tense, 23Terminology, viii, 28–8Terms of Payment, 113, 181Time, phrases concerning, 44–4Time for Completion, 44Tipping, 163Titles, 62Transport Department, 90, 143–5,

151–3Turnkey contracts, 167, 168Typefaces, 79, 80

United States of America, 74

Vagueness, 15Variation orders, 119, 120Variations payments, 198–199Variations Schedule, 183, 199–5VAT, 121Voice, 23

Wages, 106, 107War clauses, 117–19, 121Welfare facilities, 106, 157 Wensleydale, Lord, 5Wilberforce, Lord, 30“Will”, 40–41Word processors, 80, 142–4Words

choice of, 22short, 27

Work, description of, 60Working Conditions at Site, 155Works

care of, 105definition, 72, 149description, 97

World Bank, 223

236 INDEX